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THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


SELECTION    OF   CASES 


ON 


EVIDENCE 


FOR  THE  USE  OF  STUDENTS  OF  LAW 


COMPILED  AND  EDITED   BY 

JOHN    HENRY   WIGMORE 

PROFESSOR  OF    THE    LAW  OF    EVIDENCE   IN    NORTHWESTERN 
UNIVERSITY    LAW    SCHOOL 


BOSTON 

LITTLE,    BROWN,   AND   COMPANY 

1906 


r 

U)i3975 


Copyright,  1906, 

BY 

JOHN  H.  WIGMORE. 


^rfnttts 
S.  J.  Pakkrill  Sc  Co.,  Boston,  IT.  S.  A. 


PREFACE 


This  Collection  is  based  upon  the  needs  of  a  class  in  Evidence 
as  experienced  by  the  compiler  in  his  own  work.  In  choosing 
the  specific  cases,  probably  no  two  instructors  would  precisely 
agree ;  and  it  is  hardly  worth  while  to  attempt  to  give  the  reasons 
for  this  particular  selection. 

Only  one  or  two  explanations  need  to  be  made.  As  to  the 
comparative  brevity  of  the  cases,  it  will  be  found  that,  while 
irrelevant  material  has  been  carefully  pruned  out,  the  effort  has 
been  made  to  retain  as  full  a  statement  of  the  facts  as  is  neces- 
sary for  mental  discipline  in  studying  the  issue  before  the  solu- 
tion is  reached  in  the  judge's  exposition.  For  the  preliminary 
statements  of  fact  the  compiler  is  responsible ;  but  they  are  made 
up  of  verbatim  excerpts  from  the  report  itself,   wherever  possible. 

As  to  the  lack  of  citations  of  additional  authorities  by  case- 
title  in  the  notes,  these  are  supplied  by  references  to  the  appro- 
priate sections  of  the  compiler's  treatise  on  Evidence.  This  method 
seemed  to  be  more  satisfactory ;  for  it  saved  much  space  for 
additional  cases,  and  it  provided  with  sufficient  convenience  many 
more  citations  than  could  have  been  here  printed ;  it  also  avoided 
the  disadvantages  of  a  fragmentary  list  of  authorities,  which  might 
be  misleading  for  lack  of  the  accompanying  explanations  to  be 
found   in-  the   treatise. 

As  to  the  order  of  topics,  the  compiler  ventured  to  follow 
that  of  his  own  treatise  above-mentioned ;  for  it  naturally  seemed 
to  him  to  be  the  most  satisfactory.  The  only  variations  have 
been  two,  and  these  were  based  on  an  experience  as  to  the  needs 
of  students.  First,  the  topic  of  Authentication  of  Documents  has 
been  placed  so  that  it  will  be  studied  before  the  Hearsay  exception 
for  Proof  by  Official  (Certified)  Copies.  Secondly,  the  subject 
of  Conduct  as  evidence  of  Guilty  Consciousness  has  been  placed 

iii 


67:inia.3 


IV  PREFACE. 

under  the  head  of  Admissions  by  Conduct ;  where,  indeed,  it  has 
some  claim  to  belong  in  legal  theory  also. 

Since  a  collection  like  this  must  have  some  relation  to  the 
instructor's  own  plan  and  method  of  teaching  the  subject  of  Evi- 
dence, it  may  be  worth  while  to  explain  the  plan  of  the  course 
actually  employed  by  the  compiler  in  connection  with  the  use  of 
this  book.  It  falls  into  three  parts,  with  a  possible  fourth  part 
not  yet  put  into  practice : 

1.  Reading  in  Legal  History.  The  first  four  chapters  of  Pro- 
fessor Thayer's  Preliminary  Treatise  on  Evidence  are  to  be  read, 
in  private  study,  during  the  first  term,  and  the  reading  tested  by  a 
simple  examination  at  the  end  of  the  term. 

2.  Study  and  Discussion  of  Cases.  The  staple  of  the  course 
consists  in  the  study  and  discussion  of  the  book  of  cases,  with 
lectures  and  additional  references.  The  examination  consists  in 
a  paper  of  problems  or  hypothetical  cases,  and  occurs  at  the  end 
of  the  course, 

3.  Practical  Drill.     This  consists  of  two  parts : 

a.  During  the  first  term,  and  after  finishing  the  topic 
of  Impeachment  of  Witnesses :  One  student,  supplied  by  the  in- 
structor with  a  memorandum  of  answers,  takes  the  witness'  chair ; 
two  others  act  as  counsel ;  the  facts  of  a  supposed  case,  in  ten 
or  twenty  words,  are  stated  by  the  instructor ;  a  question  involv- 
ing some  rule  is  read  to  the  witness  (either  by  the  instructor  or 
by  the  offering  counsel)  ;  the  opposing  counsel,  immediately  object- 
ing, must  state  the  ground  of  his  objection,  and  the  offering 
counsel  must  answer  the  objection ;  the  instructor  then  rules  upon 
it.  Neither  counsel  knows  beforehand  what  question  will  be  asked. 
Two  or  three  such  exercises  can  be  finished  in  the  first  quarter  of 
the  hour.  They  have  proved  to  be  extremely  useful  in  familiar- 
izing the  student  with  the  practical  and  personal  handling  of  the 
rules  and  in  forcing  a  ready  knowledge  of  them.  The  danger  of 
a  false  appearance  of  certainty  in  them  and  of  the  inaccuracy 
inherent  in  rough-and-ready  rulings  can  be  counteracted  by  the 
comments  of  the  instructor. 

h.  In  the  second  term,  but  not  until  finishing  the  rules  affect- 
ing proof  of  documents,  advanced  exercises  with  the  same  general 


PREFACE. 


object  as  the  foregoing  ones.  Here  the  work  is  assigned  some 
days  or  weeks  beforehand,  and  the  cases  are  taken  up  in  turn, 
during  the  first  quarter-hour,  either  in  arbitrary  order  or  on  a 
court  calendar.  Simple  examples,  abbreviated,  are  these:  "In 
such-and-such  a  case,  impeach  Witness  A  by  conviction  of  petit 
larceny";  "In  such-and-such  a  case,  introduce  a  press-copy  of  a 
letter  sent  by  the  plaintiff  to  the  defendant";  "Prove  a  judgment 
rendered  in  the  M.  County  Court  of  Iowa" ;  "Offer  the  Revised 
Statutes  of  Indiana" ;  "Prove  a  deed  from  A  to  B  recorded  in 
M.  County,  etc." ;  "Offer  the  deposition  of  A,  taken  in  a  cause, 
etc."  Some  use  of  common  forms  will  thus  occasionally  be 
involved;  but  this  element  need  play  only  a  small  part  in 
the  work,  and  should  not  be  over-emphasized.  A  main  object 
is  to  cultivate  the  doing  of  such  things  intelligently  according 
to  principle,  and  thus  to  save  the  student  from  later  falling  into 
the  slavery  of  printed  forms  and  arbitrary  local  habits,  as  he  is 
perhaps  apt  to  do  if  he  leaves  the  law  school  without  having  made 
any  attempt  to  bridge  the  gap  between  principle  and  practice. 

The  foregoing  parts  can  be  covered  in  a  course  occupying 
two  lecture-hours  a  week  for  two  terms,  i.  e.  one  year,  or  about 
sixty-four  hours.  If  an  additional  hour  for  half  a  year  can  be 
obtained,  the  following  further  part  seems  worth  taking  up: 

4.  Study  of  Evidential  Strategy  and  Tactics  in  Trials.  Two 
complete  trials  may  be  taken,  one  English  and  one  American, 
both  to  be  of  classical  merit  as  examples  and  of  great  interest 
in  their  facts.  The  class  is  first  to  peruse  the  trial  as  a  whole ; 
then  to  take  it  up  in  parts,  and  to  analyze  and  discuss  the  various 
problems  of  management  of  proof;  asking,  first  as  to  the  plaintiff 
or  prosecutor  and  then  as  to  the  defendant,  what  were  from  his 
point  of  view  the  strong  and  the  weak  points  of  his  case,  what 
the  proper  features  of  emphasis,  what  the  preparatory  caution,  and 
what  the  best  order  of  presenting  the  witnesses.  Then  the  testi- 
mony of  individual  witnesses  is  to  be  examined  and  discussed, 
the  need  or  utility  of  specific  questions,  the  total  effect  of  his 
testimony.  Then  the  proper  lines  of  closing  argument  on  the 
testimony  would  be  considered,  and  the  actual  arguments  com- 
pared  therewith.      In   these   and   other   wavs,   the   analysis   would 


Vi  '  PREFACE. 

develop  in  useful  fashion  a  comprehension  of  the  strategy  and  the 
tactics  necessary  in  some  degree  or  other  in  every  trial,  and  prac- 
tised with  more  or  less  conscious  skill  by  every  experienced  trial- 
advocate. — But  there  are  two  almost  insuperable  obstacles  in  the 
way  of  this  valuable  adjunct  to  a  course  in  Evidence ;  first,  it 
must  be  conducted  by  a  practitioner  who  unites  a  warm  interest 
in  the  art  as  such  and  a  large  experience  in  trials ;  and  this 
combination  is  rare;  secondly,  two  suitable  trials  must  be  found, 
and  a  reprint  must  be  in  the  hands  of  each  member  of  the  class. 
The  present  compiler  had  hoped  to  include  in  this  volume  two 
such  trials,  with  a  view  to  making  feasible  this  branch  of  the 
work ;  but  no  American  trial,  suitable  in  compass  and  in  other 
necessary  features,  and  fully  reported,  has  thus  far  met  his  search. 
The  plan  is  mentioned  here  in  the  hope  that  it  will  attract  the 
attention  of  some  one  interested  in  the  subject,  who  may  be  more 
fortunate. 

J.  H.  W. 

Northwestern  University  Law  School, 
Chicago,  March  4,  1906. 


CONTENTS 


Preface. 
Abbreviations. 


INTRODUCTORY. 


1.  Bentham,  Rationale  of  Judicial  Evidence. 

2.  Holmes,  The  Common  Law. 

3.  Wigmore,  Treatise  on  Evidence. 

4.  Lord  Melville's  Trial. 

5.  Statutes. 

6.  Wigmore,  Treatise  on  Evidence. 

BOOK  I:    ADMISSIBILITY  OF  EVIDENCE. 

INTRODUCTORY. 

7.  Wigmore,  Treatise  on  Evidence. 

8.  Thayer,  Preliminary  Treatise  on  Evidence. 

9.  Irish  Society  v.  Derry. 

10.  People  V.  Doyle. 

11.  Chicago  City  R.  Co.  v.  Carroll. 

12.  Rush  V.  French. 

13.  Wolverton  v.  Commonw^ealth. 

14.  Wright  V.   Sharp. 

15.  Rush  V,  French. 

PART  I:     RELEVANCY. 

16.  Starkie,  Treatise  on  Evidence. 

17.  Commonwealth  v.  Webster. 

TITLE  I:     CIRCUMSTANTIAL  EVIDENCE.  ' 

18.  Sidgwick,   Treatise  on  Fallacies. 

19.  Cohn  V.  Saidel. 

20.  Amoskeag  Manufacturing  Co.  v.  Head. 

Sub-title  I:    Evidence  to  Prove  a  Human  Act. 
I.    Character: 

21.  Regina  v.   Rowton. 

vii 


viii  CONTENTS. 

22.  Commonwealth  v.   Hardy. 

23.  McNally,  Treatise  on  Evidence. 

24.  Turner's  Trial. 

25.  Thompson  v.   Church. 

26.  Hein  v.  Holdridge. 

27.  Tenney  v.  Tuttle. 

28.  State  V.  Manchester  &  Lawrence  Railroad. 

29.  Scott  V.  Sampson. 
2.    Sundries : 

30.  People  V.  Arnold. 

31.  Commonwealth  v.  Webster. 

32.  Regina  v.  Exall. 

Sub-title  II:    Evidence  to  Prove  a  Human  Quality  or  Condition. 

1.  Character: 

33.  Harrison's  Trial. 

34.  Davison's  Trial. 

35.  Regina  v.  Oddy. 

36.  People  V.  Shay. 

37.  Clarke  v.  Periam. 

38.  United  States  v.  Holmes. 

39.  Miller  v.  Curtis. 

40.  Cunningham  v.  R.  Co. 

2.  Knowledge : 

41.  Chicago  V.  Powers. 

42.  Baulec  v.  R.  Co. 
J.    Intent  and  Design: 

43.  Regina  v.  Cooper. 

44.  Coleman  v.  People. 

45.  Bottomley  v.  United  States. 

46.  Blake  v.  Assurance  Co. 

47.  State  V.  Lapage. 

48.  Commonwealth  v.  Robinson. 

49.  Hollingham  v.  Head. 
'4.    Motive: 

50.  State  V.  Kent  (Pancoast). 

Sub-title  III ;   Evidence  to  Prove  External  Events,  Causes,  Con- 
ditions, Qualities,  Etc. 

51.  Emerson  v.  Lowell  Gaslight  Co. 

52.  Hunt  V.  Lowell  Gaslight  Co. 

53.  Darling  v.  Westmoreland. 

54.  Phillips  V.  Willow. 

55.  Bemis  v.  Temple. 

56.  Central  Vermont  R.  Co.  v.  Soper. 

57.  Maynard  v.  Buck. 


CONTENTS.  IX 

TITLE  II:     TESTIMONIAL  EVIDENCE   (WITNESSES). 

Sub-title  I :    Qualifications  and  Disqualifications  of  Witnesses. 

58.  Wigmore,    Treatise  on  Evidence. 
/.    Insanity,  Infancy,  Infamy: 

59.  Regina  v.  Hill. 

60.  Walker's  Trial. 

61.  Rex  V.  Brasier. 

62.  Gilbert,  Treatise  on  Evidence. 

63.  Greenleaf,  Treatise  on  Evidence. 

64.  Vance  v.  State. 
2.    Experience : 

65.  Kelley  v.   Richardson. 

66.  Vander  Donckt  v.  Thelusson. 

67.  Evans  v.  People. 
J.    Interest  : 

68.  Gilbert,  Treatise  on  Evidence. 

69.  Greenleaf,  Treatise  on  Evidence. 

70.  Bentham,  Rationale  of  Judicial  Evidence. 

71.  Stephens  v.  Bernays. 

72.  People  V.  Tyler. 

73.  Collins  V.  People. 

4.  Marital  Relationship  : 

74.  Gilbert,  Treatise  on  Evidence. 

75.  Common  Law  Practice  Commission's  Report. 
y6.  William  &  Mary  College  v.  Pov^^ell. 

5.  Knowledge  : 

77-  Wigmore,   Treatise  on  Evidence. 

78.  Bushel's  Case. 

79.  Bushnell's  Trial. 

80.  Starkie,  Treatise  on  Evidence. 

81.  Parnell  Commission's  Proceedings. 

82.  Carpenter's  Estate. 

83.  Lord  Ferrers  v.  Shirley. 

84.  Eagleton  v.  Kingston;  Wade  v.  Broughton. 

85.  Rowt's    Administratrix    v.  Kile's  Administrator. 

86.  De  Berenger's  Trial. 

6.  Recollection : 

87.  State  V.  Flanders. 

88.  Acklen's  Executors  v.  Hickman. 

89.  Rex  V.  St.  Martin's. 

90.  Doe  7K  Perkins. 

91.  Burrough  v.  Martin. 

92.  Mayor,  etc..  of  New  York  v.  Second  Ave.  R.  Co. 

93.  Lawes  v.  Reed. 


X  CONTENTS. 

94.  Henry  v.  Lee. 

95.  Huff  V.  Bennett. 

96.  Rex  V.  Ramsden. 

/.    Mode  of  Narrating  or  Delivering  Testimony: 

97.  Wigmore,  Treatise  on  Evidence. 

98.  Chitty,  Treatise  on  The  Practice  of  the  Law. 

99.  Hansard's  Parliamentary  Debates. 
100.  Lott  V.  King. 

loi.  Parnell  Commission's  Proceedings. 

102.  Bishop  of  Lincoln's  Trial. 

103.  Allen  V.  Seyfried. 

104.  Ing's  Trial. 

105.  Archer  v.  R.  Co. 

106.  Allen  V.  Rand. 

Sub-title  H  :    Impeachment  of  Witnesses. 

107.  Wigmore,  Treatise  on  Evidence. 

/,    Who  may  he  Impeached: 

108.  Fletcher  v.  State. 

109.  Buller,  Treatise  on  Trials  at  Nisi  Prius. 
no.  Whitaker  v.  Salisbury. 

111.  May,  Article  on  Some  Rules  of  Evidence. 

112.  Wright  V.  Beckett. 

113.  Bullard  v.  Pearsall. 

114.  Statutes. 

9,    Moral  Character: 

115.  Macclesfield's  Trial. 

116.  Rex  V.  Watson. 

117.  State  V.  Randolph. 

5.    Bias  and  Interest: 

118.  Ellsworth  V.  Potter. 

119.  Trinity  County  Lumber  Co.  v.  Denham. 

^    Conduct  as  Evidence  of  Character: 

120.  Rookv^^ood's  Trial. 

121.  Oxier  v.  United  States. 

122.  People  V.  Jackson. 

123.  State  V.  Greenburg. 

124.  Rex  V.  Watson. 

125.  Regina  v.  Castro  (Tichborne). 

126.  Third  Great  Western  Turnpike  Co.  v.  Loomis. 
5.    Contradiction  hy  Other  Witnesses: 

127.  Whitebread's  Trial. 

128.  Castlemaine's  Trial. 

129.  Blakey's  Heirs  v.  Blakey's  Executors. 


CONTENTS.  XI 

<J.    Self -Contradiction : 

130.  Berkeley  Peerage  Trial. 

131.  Attorney-General  v.  Hitchcock. 

132.  The  Queen's  Case. 

133.  Downer  v.  Dana. 

Sub-title  III :    Admissions  of  Parties. 

134.  State  V.  Willis. 

135.  Heane  v.  Rogers. 

136.  Corser  v.  Paul. 

137.  Collins  V.  Mack. 

/.    Admissions  by  Privies  in  Title  or  Obligation: 

138.  Franklin  Bank  v.  Pennsylvania  D.  &  M.  S.  N.  Ox 

139.  Gibblehouse  v.  Stong. 

140.  Cuyler  v.  McCartney. 

g.    Implied  Admissions : 

141.  Commonwealth  v.  Kenney. 

142.  Home  Tooke's  Trial. 

143.  Fairlie  v.  Denton. 

144.  Hartford  Bridge  Co.  v.  Granger. 

145.  Craig  dem.  Annesley  v.  Anglesea. 

146.  Alberty  v.  United  States. 

147.  Armorie  v.  Delamirie. 

148.  M'Reynolds  v.  M'Cord. 

IJ.    Confessions  in  Criminal  Cases: 

149.  State  V.  Novak. 

150.  Warickshall's  Case. 

151.  Regina  I'.  Moore. 

152.  Regina  v.  Baldry. 

153.  Hendrickson  v.  People. 

154.  People  V.  McMahon. 

155.  Teachout  v.  People. 

Sub-title  IV:    Rehabilitation  of  Witnesses. 

156.  People  V.  Rector. 

157.  Gertz  V.  Fitchburg  R.  Co. 

158.  Stewart  v.  People. 


TITLE    III:      REAL    EVIDENCE    (AUTOPTIC 
PROFERENCE). 

159.  Gentry  v.  McMinnis. 

160.  Ing's  Trial. 

161.  Rules  for  Views. 


Xii  CONTENTS. 

PART   II;    RULES   OF  AUXILIARY   PROBATIVE 

POLICY. 

162.  Wigmore,  Treatise  on  Evidence. 

TITLE   I:     QUANTITATIVE   (OR,    SYNTHETIC)    RULES. 

Sub-title  I :    Rules  as  to  the  Number  of  Witnesses  Required,  or 
THE  Corroboration  of  Single  Witnesses. 
/.    General  Principle: 

163.  Thayer,  Preliminary  Treatise  on  Evidence. 

164.  Wigmore,  Treatise  on  Evidence. 

165.  Corpus  Juris  Romani  et  Canonici. 

166.  Sidney's  Trial. 

167.  Stephen,  History  of  the  Criminal  Law. 

168.  Best,  Treatise  on  Evidence. 

169.  Callanan  v.  Shaw. 

170.  Bourda  v.  Jones. 

^.    Exceptional  Rules  for  Specific  Issues: 

171.  Statutes. 

172.  Rex  V.  Muscot. 

173.  Best,  Treatise  on  Evidence. 

174.  Pember  v.  Mathers. 

175.  Gresley,  Treatise  on  Evidence  in  Equity. 

176.  Attwood  V.  Small. 

177.  Swinburne,  Treatise  on  Wills. 

178.  Statute  of  Frauds  and  Perjuries. 

179.  Hindson  v.  Kersey. 

Sub-title  II :    Rules  as  to  the  Kind  of  Witness  Required,  or  the 
Corroboration  of  Certain  Kinds  of  Witnesses. 
/.    Accomplice,  Rape,  Bastardy,  Etc.: 

180.  Rex  V.  At  wood. 

181.  Joy,  Treatise  on  Evidence  of  Accomplices. 

182.  Rex  V.  Farley. 

183.  Rex  V.  Reading. 

184.  Goodright  v.  Moss. 
g.    Confessions : 

185.  Canons  of  the  Church. 

186.  Oughton,  Ordo  Judiciorum. 

187.  Bergen  v.  People. 

188.  Hale,  Pleas  of  the  Crown. 

189.  Regina  v.  Burton. 

190.  Commonwealth  v.  Webster. 

^.    Eye-Witness  of  Crime  or  Marriage: 

191.  State  V.  Barrett. 


CONTENTS.  Xlll 

192.  Doe  V.  Fleming. 

193.  Breadalbane  Case. 

194.  Morris  v.  Miller. 

195.  Birt  V.  Barlow. 
.    196.  Ham's  Case. 

197.  Statutes. 

Sub-title  III :     Rules  Requiring  or  Allowing  Verbal  Complete- 
ness. 

198.  Read  v.  Hide. 

199.  Sidney's  Trial. 

200.  Starkie,  Treatise  on  Evidence. 

201.  Commonwealth  v.  Keyes. 
J.    Compulsory  Completeness: 

a.  Oral  Utterances : 

202.  Eaton  V.  Rice. 

203.  Summons  v.  State. 

204.  Thomson  v.  Austen. 

205.  Parnell  Commission's  Proceedings. 

b.  Documents: 

206.  Eaton's  Trial. 

207.  Tilton  V.  Beecher. 

208.  Perry  v.  Burton. 

209.  Vance  v.  Reardon. 
2.    Optional  Completeness : 

210.  The  Queen's  Case. 

211.  Prince  v.  Samo. 

212.  Atherton  v.  Defreeze. 

213.  Dewey  v.  Hotchkiss. 

214.  Calvert  v.  Flower. 

Sub-title  IV:    Rules  for  Authentication  of  Documents. 

215.  Home  Tooke's  Trial. 

216.  Stamper  v.  Griffin. 

217.  Siegfried  v.  Levan. 

218.  Pearce  v.  Hooper. 

219.  Wigmore,  Treatise  on  Evidence. 
7.    A>uthentication  by  Age: 

220.  Meath  v.  Winchester. 

221.  Middleton  v.  Mass. 

2.    Authentication  by  Contents: 

222.  Singleton  v.  Brenner. 

223.  Howley  v.  Whipple. 

224.  Obermann  Brewing  Co.  v.  Adams. 
'J.    Authentication  by  Official  Custody: 

225.  Adamthwaite  v.  Synge. 


Xiv  CONTENTS. 

4.    Authentication  by  Seal: 

226.  Jeaffreson,  Book  about  Lawyers. 

227.  Gilbert,  Treatise  on  Evidence. 

228.  Griswold  v.  Pitcairn. 

229.  Commonwealth  v.  Phillips. 

230.  Waldron  v.  Turpin. 

231.  Stout  V,  Slattery. 

232.  Den  V.  Vreelandt. 

233.  Wigmore,  Treatise  on  Evidence. 

TITLE  II:     PREFERENTIAL  RULES. 

234.  Wigmore,  Treatise  on  Evidence. 

Sub-title  I:     Production  of  Documentary  Originals. 
/.     The  Rule: 

235.  Dr.  Leyfield's  Case. 

236.  Commonwealth  v.  Morrell. 

237.  Gathercole  v.  Miall. 

238.  Attorney-General  v.  Le  Merchant. 

239.  Dwyer  v.  Collins. 

240.  United  States  v.  Doebler. 

241.  Gilbert,  Treatise  on  Evidence. 

242.  Doe  dem.  Patterson  v.  Winn. 

243.  Commonwealth  v.  Emery. 

244.  Statutes. 

245.  Rex  V.  Watson. 

246.  Nickerson  v.  Spindell. 

247.  Doe  V.  Harvey. 

248.  Moberly_  v.  Lamb. 

249.  Tilton  V.  Beecher. 
g.    Exceptions  to  the  Rule: 

250.  Cole  V.  Gibson. 

251.  Massey  v.  Bank. 

252.  Slatterie  v.  Poolie. 

253.  The  Queen's  Case. 

254.  Brougham,  Speech  on  the  Reform  of  the  Law. 

255.  Statutes. 

^.    Rules  of  Preference  between  Secondary  Modes  of  Evidencing 
Contents: 

256.  Doe  V.  Ross. 

257.  Clemens  v.  Conrad. 

258.  State  V.  Lynde. 

259.  Winn  V.  Patterson. 

Sub-title  II :    Peeferred  Witnesses. 
I.    Attesting  Witness: 

260.  Thayer,  Preliminary  Treatise  on  Evidence. 


CONTENTS.  XV 

261.  Common  Law  Practice  Commission's  Report. 

262.  Statutes. 

263.  Tarrant  v.  Ware. 

264.  Doe  V.  Hindson: 

265.  Adam  v.  Kerr. 

266.  Gelott  V.  Goodspeed. 

267.  Newsom  v.  Luster. 

268.  Statutes. 

2.    Other  Kinds  of  Witnesses : 

269.  United  States  v.  Gibert. 

270.  Jeans  v.  Wheedon. 

TITLE  III:     ANALYTIC  RULES:     THE  HEARSAY  RULE. 
Sub-title  I:     Theory  of  the  Hearsay  Rule;  Right  of  Cross-Ex- 

AMINATIONS. 

/.    General  Theory: 

271-2.  Wigmore,  Treatise  on  Evidence. 

273.  Craig  dem.  Annesley  v.  Anglesea. 

274.  Coleman  v.  Southwick. 

275.  Hale,  History  of  the  Common  Law. 

276.  Bentham,  Rationale  of  Judicial  Evidence. 
2yy.  Brown,  The  Forum. 

278.  Reed,  Conduct  of  a  Lawsuit. 
279-280.  Parnell  Commission's  Proceedings. 
2.    Requirement  of  Cross-Exatnination: 

281.  Buller,  Trials  at  Nisi  Prius. 

282.  Rex  V.  Eriswell. 

283.  Evans  v.  Rothschild. 

284.  Wright  V.  Tatham. 

^.    Requirement  of  Confrontation: 

285.  Constitution  of  the  United  States. 

286.  Howser  v.  Commonwealth. 

287.  United  States  v.  Macomb. 

288.  Statutes. 

289.  Bogie  V.  Nolan. 

Sub-title  II:    Exceptions  to  the  Hearsay  Rule. 

290.  Sugden  v.  St.  Leonards. 
/.    Dying  Declarations: 

2^1.  Woodcock's  Case. 

292.  Wilson  V.  Boerem. 

2.    Statements  of  Facts  against  Interest: 

293.  Middleton  v.  Melton. 

294.  Smith  V.  Blakey. 


XVI  CONTENTS. 

J.    Statements  of  Facts  of  Family  History  (Pedigree), 

295.  Vowles  V.  Young. 

296.  Rex  V.  Erith. 

297.  Johnson  v.  Lawson. 

298.  Shields  v.  Boucher. 

299.  Monkton  v.  Attorney-General. 

jf.    Attestation  of  a  Subscribing  Witness: 

300.  Adam  v.  Kerr. 
J.    Regular  Entries: 

a.  By  Parties: 
301-302.  Statutes. 

303.  Eastman  v.  Moulton. 

304.  Smith  V.  Rentz. 

305.  Conklin  v.  Stamler. 

306.  Statutes. 

b.  By  Third  Persons: 

307.  Price  V.  Lord  Torrington. 

308.  Poole  V.  Dicas. 

309.  Smith  V.  Blakey. 

310.  Kennedy  v.  Doyle. 

311.  Fielder  v.  Collier. 

4.    Sundry  Declarations  by  Deceased  Persons: 

312.  Scoggin  V.  Dalrymple. 

313.  Carver  v.  Jackson. 

314.  Statutes. 
7.    Reputation: 

a.  Land  Boundaries: 

315.  Regina  v.  Bedfordshire. 

316.  Harriman  v.  Brown. 

b.  General  History: 

317.  Steyner  v.  Droitwich. 
C.    Marriage : 

318.  Breadalbane  Case. 
d.    Character: 

319.  Bucklin  v.  State. 

320.  Pickens  v.  State. 

321.  Atlantic  &  Birmingham  R.  Co.  v.  Reynolds. 

322.  Foster  v.  Brooks. 

.&    Official  Statements  (Public  Documents) : 

323.  Rex  V.  Aickles. 

324.  Stewart  v.  Allison. 
a.    Registers  and  Records: 

325.  Kennedy  v.  Doyle. 

326.  Gilbert,  Treatise  on  Evidence. 


CONTENTS.  Xvii 

327.  Starkie,  Treatise  on  Evidence. 

328.  Eady  v.  Shivey. 

329.  Statutes. 

b.    Reports  and  Returns: 

330.  Ellicott  V.  Pearl. 

331.  Jones  V.  Guano  Co. 

C.     Certificates  (including  Certified  Copies) : 

332.  Omichund  v.  Barker. 

333.  Townsley  v.  Sumrall. 

334.  Kidd's  Administrator  v.  Alexander's  Administrator, 

335.  Statutes. 

336.  Buller,  Trials  at  Nisi  Prius. 

337.  United  States  v.  Percheman. 

338.  Statutes. 

339.  Gilbert,  Treatise  on  Evidence. 

340.  Church  V.  Hubbart. 

341.  Statutes. 

342.  Gilbert,  Treatise  on  Evidence. 

343.  Statutes. 

p.    Scientific  Books  and  Learned  Treatises: 

344.  Spencer  Cow^per's  Trial. 

345.  Ashworth  v.  Kittredge. 

346.  Pinney  v.  Cahill. 
JO.     Commercial  Reports,  etc.: 

347.  Sisson  V.  R.  Co. 

Jl.  Statements  of  a  Bodily  or  Mental  Condition: 

348.  Bacon  v.  Charlton. 

349.  Barber  v.  Merriam. 

350.  Roche  V.  R.  Co. 

351.  Mutual  Life  Insurance  Co.  v.  Hillmon. 

352.  Doe  dem.  Shallcross  z'.  Palmer. 

353.  Sugden  v.  Lord  St.  Leonards. 

354.  Boylan  v.  Meeker. 

355.  Rusling  V.  Rusling. 

356.  Mooney  v.  Olsen. 

357.  Waterman  v.  Whitney. 
12.     Spontaneous  Exclamations : 

358.  Thompson  v.  Trevanion. 

359.  Insurance  Co.  v.  Mosley. 

Sub-title  III:    The  Hearsay  Rule  not  Applicable. 

360.  Milne  v.  Leisler. 

361.  Evans,   Notes  to   Pothier  on  Obligations. 

362.  Bentham,   Principles  of   Morals  and   Legislation. 

363.  Webb  V.  Richardson. 


Xviii  CONTENTS. 

364.  Tilton  V.  Beecher. 

365.  Fabrigas  v.  Mostyn. 

366.  Parnell  Commission's   Proceeding. 

367.  State  V.  Fox. 

Sub-title  IV:    The  Hearsay  Rule  as  Applied  to  Court  Officers. 

368.  Allen  V.  Rostain. 

369.  Anderson's  Trial. 

370.  Tilton  V.  Beecher. 

371.  People  V.  Wells. 

TITLE  IV:     PRECAUTIONARY  (OR  PROPHYLACTIC) 

RULES. 

372.  Wigmore,  Treatise  on  Evidence. 

Sub-title  I :    Oath. 

373.  Lady  Lisle's  Trial. 

374.  Omichund  v.  Barker. 

375.  Chitty,  Treatise  on  Criminal  Law. 

376.  Braddon's  Trial. 

377.  Statutes. 

Sub-title  II :     Perjury — Penalty. 

378.  Starkie,  Treatise  on  Evidence. 

Sub-title  III :    Publicity. 

379.  Cornish's  Trial. 

380.  Blackstone,  Commentaries. 

Sub-title  IV:     Separation  of  Witnesses. 

381.  History  of  Susanna. 

382.  Laughlin  v.  State. 

Sub-title  V:     Discovery,  or  Notice  of  Evidence  to  the  Opponent 
Before  Trial. 

I.     Criminal  Cases: 

383.  Stephen,  History  of  the  Criminal  Law. 

384.  Statutes. 
S.     Civil  Cases: 

a.  Interrogation  of  Parties  before  Trial: 

385.  Wigram,  Treatise  on  Discovery. 

386.  Combe  v.  London. 

387.  English   Common  Law  Practice  Commissioners'  Report. 

388.  Statutes. 

389.  Daly,  Essay  on  Preparation  for  Trial. 

390.  Re  Strachan. 

b.  Discovery  of  Documents  or  Chattels  before  Trial: 

391.  Brougham,  Speech  on  the  Courts  of  Common  Law. 

392.  Bolton  V.  Liverpool. 


CONTENTS.  Xix 

393.  Groenvelt  v.  Burrell. 

394.  Tidd,  Treatise  on  Practice. 

395.  English  Common  Law  Practice  Commissioners'  Report. 

396.  Statutes. 

397.  Reynolds  v.  Burgess  Sulphite  Fibre  Co. 

TITLE  V:     SIMPLIFICATIVE  RULES. 

398.  Wigmore,  Treatise  on   Evidence. 

Sub-title  I :    Order  of  Introducing  Evidence. 

399.  Rucker  v.  Eddings. 

400.  Rogers  v.  Brent. 

401.  Parnell  Commission's  Proceedings. 

402.  Lord  Lovat's  Trial. 

403.  Moody  V.  Rowell. 

404.  Philadelphia  &  Trenton  R.  Co.  v.  Stimpson. 

405.  New  York  Iron   Mine  v.  Negaunee  Bank. 

Sub-title  II :    Sundry  Rules  to  Avoid  Confusion  of  Issues,  Undue 
Weight,  Etc. 

406.  Eraser  v.  Jennison. 

407.  Howser  v.  Commonwealth. 

408.  Maitland  v.  Zanga. 

409.  Ross  V.  Demoss. 

Sub-title  III:    Opinion  Rule. 

1.  General  Principle: 

410.  Starkie,  Treatise  on  Evidence. 

411.  Lewis,  Influence  of  Authority  in  Matters  of  Opinion. 

412.  Whately,  Elements  of  Rhetoric. 

413.  Fenwick  v.  Bell. 

414.  Brown  v.  Commonwealth. 

415.  Taylor  v.  Monroe. 

416.  State  V.  Pike. 

2.  Application  to  Specific  Topics  of  Testimony: 

417.  Hardy  v.  Merrill. 

418.  Kempsey  v.  McGinniss. 

419.  Yost  V.  Conroy. 

420.  Penn  Mutual  Life  Ins.  Co.  v.  Mechanics'  Savings  Bank 

&  Trust  Co. 

421.  Fenwick  z'.  Bell. 

422.  Earl  of  Thanet's  Trial. 

423.  Fiske  V.  Cowing. 

424.  Davison's  Trial. 

425.  Regina  z'.  Rowton. 

426.  Swift,  Treatise  on  Evidence. 


XX  CONTENTS. 

427.  Sidney's  Trial. 

428.  Hale's  Trial. 

429.  Commonwealth  v.  Smith. 

430.  Doe  dem.  Mudd  v.  Suckermore. 

431.  Doe  dem.  Parry  v.  Newton. 

432.  University  of  Illinois  v.  Spalding. 

433.  Statutes. 

434.  Wigmore,  Treatise  on  Evidence. 

435.  Hoag  V.  Wright. 
J.    Hypothetical  Questions: 

436.  Kempsey  v.  McGinniss. 

437.  Bellefontaine  &  Indiana  R.  Co.  v.  Bailey. 

438.  First  National  Bank  v.  Wirebach's  Executor. 

PART  III:     RULES  OF  EXTRINSIC  POLICY. 

439.  Wigmore,  Treatise  on  Evidence. 

TITLE  I :  RULES  OF  ABSOLUTE  EXCLUSION. 

440.  Commonwealth  v.  Dana. 

TITLE     II:     RULES     OF     CONDITIONAL     EXCLUSION 

(PRIVILEGE). 

Sub-Title  I :     The  Testimonial  Duty  in  General. 

441.  Countess  of  Shrewsbury's  Trial. 

442.  Statutes. 

443.  Amey  v.  Long. 

444.  Chitty,  Practice  of  the  Law. 

445.  Braddon's  Trial. 

446.  West  V.  State. 

447.  People  V.  Davis. 

448.  New  York  Practice  Commissioner's  Report. 

449.  Statutes. 

Sub-title  II:    Privileged  Topics. 

450.  Doe  dem.  Egremont  v.  Date. 
J.     Sundry  Privileges: 

451.  Walker's  Trial. 

452.  Doe  dem.  Egremont  v.  Date. 

453.  Dobson  V.  Graham. 

454.  Free  v.  Buckingham. 

455.  State  V.  Hilmantel. 

456.  Cook's  Trial. 

457.  English  Common  Law  Practice  Commission's  Report. 

458.  Lord  Melville's  Case. 


CONTENTS.  XXi 

2.  Civil  Party's  Privilege. 

459.  Blackstone,  Commentaries.  r 

460.  Storey  v.  Lord  Lennox. 

461.  Kynaston  v.  East  India  Co. 

462.  Union  Pacific  R.  Co.  v.  Botsford. 

463.  Wanek  v.  Winona. 
J.    Marital  Privilege: 

464.  Coke  upon  Littleton. 

465.  Knowles  v.  People. 

466.  English  Common  Law  Practice  Commission's  Report. 

467.  Rex  V.  Cliviger. 

468.  Rex  V.  All  Saints. 

469.  Caldwell  v.  Stuart. 

470.  Soule's  Case. 

^.    Privilege  against  Self -Crimination : 

471.  Penn's  &  Mead's  Trial. 

472.  Constitution  of  the  United  States. 

473.  Stephen's  History  of  the  Criminal  Law. 

a.  Scope  of  the  Privilege: 

474.  Paxton  V.  Douglas. 

475.  Aaron  Burr's  Trial. 

476.  Ward  V.  State. 

477.  Boyd  V.  United  States. 

478.  State  V.  Flynn. 

479.  United  States  v.  Cross. 

480.  Counselman  v.  Hitchcock. 

481.  State  V.  Quarles. 

482.  Brown  v.  Walker. 

b.  Claim  and  Waiver  of  the  Privilege: 

483.  Bembridge's  Trial. 

484.  Cloyes  V.  Thayer. 

485.  Regina  v.  Garbett. 

486.  Aaron  Burr's  Trial. 

487.  State  V.  Thaden. 

488.  People  V.  Tyler. 

489.  State  V.  Cleaves. 

490.  Statutes. 

491.  Commonwealth  v.  Webster. 

492.  Foster  v.  People. 

493.  State  V.  Wentworth. 

Sub-title  HI:    Privileged  Communications. 

494.  Duchess  of  Kingston's  Case. 

495.  Dublin  Election  Case. 
i".    Attorney  and  Client: 

496.  Anderson  v.  Bank. 


XXll  CONTENTS. 

497.  Statutes. 
*  498.  Craig  dem.  Annesley  v.  Anglesea. 

499.  Greenough  v.  Gaskell. 

500.  Hatton  V.  Robinson. 

501.  Barnes  v.  Harris. 

502.  Thompson  v.  Kilborne. 

503.  Coveney  v.  Tannehill. 

504.  Mitchell's  Case. 

505.  Skinner  v.  Great  Northern  R.  Co. 

506.  Coleman's  Will. 

507.  Layman's  Will. 

2,    Husband  and  Wife: 

509.  Mercer  v.  State. 

510.  Clements  v.  Marston. 

^,    Jurors: 

511.  Phillips  V.  Marblehead. 

512.  Earl  of  Shaftesbury's  Trial. 

513.  Commonwealth  v.  Mead. 

514.  Statutes. 

'if.    Official  Secrets;  Government  and  Informer: 

515.  Hardy's  Trial. 

516.  Delaney  v.  Philadelphia. 

517.  Burr's  Trial. 

518.  Cooley,  Treatise  on  Torts. 

519.  Beatson  v.  Skene. 

5.  Physician  and  Patient : 

520.  Duchess  of  Kingston's  Case. 

521.  New  York  Practice  Commissioners'  Report. 

522.  Statutes. 

523.  Gartside  v.  Insurance  Co. 

6,  Priest  and  Penitent: 

524.  Regina  v.  Hay. 

525.  Statutes. 

PART  IV:    PAROL  EVIDENCE  RULE. 

(CONSTITUTION  OF  LEGAL  ACTS). 

526.  Wigmore,  Treatise  on  Evidence. 

Sub-title  I.     Creation  of  Legal  Acts. 
/.    Subject,  Terms,  Delivery: 

527.  Earle  v.  Rice. 

528.  Thoroughgood's  Case. 

529.  Xenos  V.  Wickham. 

530.  Hudson  V.  Revett. 


CONTENTS.  XXIU 

531.  Price  V.  Hudson. 

532.  Burke  v.  Dulaney. 

533.  Pym  V.  Campbell. 

534.  Stanley  v.  White. 
2*    Intent  and  Mistake: 

535.  Brett  V.  Rigdon. 

536.  Austin,  Jurisprudence. 

537.  Holland,  Elements  of  Jurisprudence. 

538.  Cornish  v.  Abington. 

539.  Foster  v.  Mackinnon. 

540.  Trambly  v.  Ricard. 

541.  Essex  V.  Day. 

542.  Park  Brothers  Co.  v,  Blodgett  &  Clapp  Co. 

543.  Garrard  v.  Frankel. 

544.  Barker  v.  Sterne. 

545.  Baxendale  v.  Bennett. 

546.  Hubbard  v.  Greeley. 

547.  Guardhouse  v.  Blackburn, 
rj.     Voidability : 

a.  Error: 

548.  State  V.  Cass. 

549.  Redgrave  v.  Hurd. 

b.  Duress: 

550.  Fairbanks  v.  Snow. 

551.  Wigmore,   Treatise  on   Evidence. 

Sub-title  H:     Integration  of  Legal  Acts  (varying  the  terms  OF 
AN  instrument)  : 

552.  Wigmore,  Treatise  on  Evidence. 
'Jo    Private  Acts: 

a.  General  Principle: 

553.  Lilly's   Practical  Register. 

554.  Webb  V.  Plummer. 

555.  Brown  v.  Byrne. 

556.  Bretto  V.  Levine. 

557.  Potter  V.  Easton. 

b.  Application  to  Particular  Kinds  of  Transactions Z 

558.  Ramsdell  v.  Clark. 

559.  Baum  V.  Lynn. 

560.  Chapin  v.  Dobson. 

561.  Barbre  v.  Goodale. 

562.  Foster  v.  Jolly. 

563.  Thompson  v.  Clubley. 

564.  Goss  V.  Lord  Nugent. 

565.  Ashley  v.  Ashley. 


XXiy  CONTENTS. 

2.    Judicial  Acts: 

a.  Record  of  a  Judgment: 

567.  Sayles  v.  Briggs. 

568.  Pruden  v.  Alden. 

b.  Verdict  of  a  Jury: 

569.  Robbins  v.  Windover. 

570.  Haak  v.  Breidenbach. 

571.  Vaise  v.  Delaval. 

572.  Wright  V.  Telegraph  Co, 

573.  Rex  V.  Woodfall. 

574.  Capen  v.  Stoughton. 

575.  Low's  Case. 
5.     Corporate  Acts: 

576.  United  States  Bank  v.  Dandridge. 

Sub-title  III :    Formalities  of  Legal  Acts. 

577.  Statute  of  Frauds  and  Perjuries. 

578.  Leroux  v.  Brown. 

579.  Wigmore,  Treatise  on  Evidence. 

Sub-title  IV:    Interpretation  of  Legal  Acts. 

580.  Wigmore,  Treatise  on  Evidence. 
J.    Standards  of  Interpretation: 

581.  Throckmerton  v.  Tracy. 

582.  Bentham,  Rationale  of  Judicial  Evidence. 

583.  Attorney-General  v.  Shore. 

584.  Re  Jodrell. 

585.  Tilton  V.  American  Bible  Society. 

586.  Myers  v.  Sari. 

587.  Violette  v.  Rice. 

588.  Walls  V.  Bailey. 

589.  Stoops  V.  Smith. 

590.  Rickerson  v.  Ins.  Co. 
S.    Sources  of  Interpretation: 

591.  Wigram,  Interpretation  of  Wills. 

592.  Miller  v.  Travers. 

593.  Lord  Cheney's  Case. 

594.  Lord  Bacon's  Maxims. 

595.  Doe  dem.  Cord  v.  Needs. 

596.  Miller  v.  Travers. 

597.  Doe  V.  Hiscocks. 

598.  Willard  v.  Darrah. 

599.  Wiseman  v.  Green. 

600.  Winkley  v.  Kaime. 

601.  Kurtz  V.  Hibner. 

602.  Justices   Redfield's   and  Caton's  Comments  on  Kurtz  v, 

Hibner. 


CONTENTS.  XXV 

BOOK   II:     BY  WHOM  EVIDENCE  MUST 
BE  PRESENTED. 

(BURDEN  OF  PROOF;  PRESUMPTIONS). 

604-605.  Wigmore,  Treatise  on  Evidence. 

TITLE  I:  GENERAL  PRINCIPLES  FOR  THE  TWO  KINDS 
OF  BURDEN  OF  PROOF. 

606.  Barry  v,  Butlin. 

607.  Hingeston  v.  Kelly. 

608.  Abrath  v.  Northeastern  R.  Co. 

609.  Powers  V.  Russell. 

610.  Carver  v.  Carver. 

611.  Rex  V.  Almon. 

612.  Alabama  Great  Southern  R.  Co.  v.  Taylor. 

613.  Menominie  S.  &  D.  Co.  v.  Milvi^aukee  &  N.  R.  Co. 

614.  Ewing  V.  Goode. 

615.  Barabasz  v.  Kabat. 

616.  Joliet,  A.  &  N.  R.  Co.  v.  Velie. 

617.  Commonwealth  v.  Webster. 

618.  Buel  V.  State. 

619.  Ellis  V.  Buzzell. 

TITLE  II:   PRESUMPTIONS   IN   SPECIFIC  ISSUES. 

620.  Sutton  V.  Sadler. 

621.  Davis  V.  United  States. 

622.  Schmisseur  v.  Beatrie. 

623.  Gulf,  Colorado  &  Sante  Fe  R.  Co.  v.  Shieder. 

624.  Scott  V.  London  &  St.  Katharine  Docks  Co. 

625.  State  V.  Brady. 

626.  Davie  v.  Briggs. 

BOOK  III:    TO  WHOM  EVIDENCE  MUST 
BE  PRESENTED. 

(JUDGE  AND  JURY;  LAW  AND  FACT). 

627.  Bartlett  v.  Smith. 

628.  Commonwealth  v.  Robinson. 

629.  l*)ridges  v.  North  London  R.  Co. 

630.  State  V.  Moses. 

631.  Commonwealth  v.  Porter. 

632.  Hutchison  v.  Bowker. 

633.  Commonwealth  v.  Anthcs. 


XXVi  CONTENTS. 

BOOK  IV:    OF  WHAT  PROPOSITIONS  NO 
EVIDENCE  NEED  BE  PRESENTED. 

TITLE  I:  JUDICIAL  NOTICE. 

634.  Andnymous. 

635.  Fox  V.  State. 

636.  Attorney-General  v.  Cast-Plate  Glass  Co. 

637.  Rex  V.  Rosser. 

638.  Doyle  V.  Bradford. 

639.  Hooper  v.  Moore. 

640.  McCoy  V.  World's  Columbian  Exposition  Co. 

641.  Kilpatrick  v.  Commonwealth. 

TITLE  II:  JUDICIAL  ADMISSIONS. 

642.  Langley  v.  Oxford. 

643.  Prestwood  v.  Watson. 

644.  Statutes. 

645.  Adkins  v.  Commonwealth. 

646.  Statutes. 

647.  Carver  v.  Carver. 

List  of  Cases  Quoted. 
List  of  Statutes  Quoted. 
Topical  Index. 


ABBREVIATIONS. 

Citations  of  Reports  are  made  by  the  usual  abbreviations. 

The  abbreviation  "W.,"  followed  by  a  figure,  refers  to  the  sections 
of  the  Compiler's  Treatise  on  Evidence,  published  in  1904-5,  by  the 
same  publishers. 


CASES    ON    EVIDENCE. 

INTRODUCTORY. 

Jeremy  Bentham,  Rationale  of  Judicial  Evidence  (1827),  h.  IX,  pt. 
VI,  c.  V  {Bowring's  ed.  vol.  VII,  p.  560):   "The  question,  on  what  facts 
the  decision  turns,  is  a  question,  not  of  evidence,  but  of  the  sub- 
^  stantive  branch  of  the  law:  it  respects  the  prohandum,  not  the 

prohans:  it  does  not  belong  to  the  inquiry,  by  what  sort  of  evidence 
the  facts  of  the  case  may  be  proved ;  it  belongs  to  the  inquiry,  what 
are  the  facts  of  which  the  law  has  determined  that  proof  shall  be  re- 
quired, in  order  to  establish  the  plaintiff's  claim.  This  circumstance, 
obvious  as  it  is,  might  easily  be  overlooked  by  one  who  has  studied 
the  subject  only  in  the  compilations  of  the  English  institutional 
writers ;  who,  not  content  with  directing  that  the  evidence  be  confined 
to  the  points  in  issue,  have  farther  proceeded,  under  the  guise  of  lay- 
ing down  rules  of  evidence,  to  declare,  on  each  occasion,  what  the 
points  in  issue  are.  One  whole  volume  out  of  two  which  compose  Mr. 
Phillipps's  treatise  on  the  Law  of  Evidence, — with  a  corresponding  por- 
tion of  the  other  treatises  extant  concerning  that  branch  of  the  law, — 
is  occupied  in  laying  down  rules  concerning  the  sort  of  evidence  which 
should  be  required  in  different  sorts  of  actions  or  suits  at  law.  But 
why  should  different  forms  of  action  require  different  sorts  of  evi- 
dence? The  securities  by  which  the  trustworthiness  of  evidence  is 
provided  for,  and  the  rules  by  which  its  probative  force  is  estimated, 
if  for  every  sort  of  cause  they  are  what  they  ought  to  be,  must  be  the 
same  for  one  sort  of  cause  as  for  another.  The  difference  is  not  in 
the  nature  of  the  proof;  it  is  in  the  nature  of  the  facts  required  to  be 
proved.  There  is  no  difference  as  between  different  forms  of  action,  in 
reason,  or  even  in  English  law,  in  respect  of  the  rules  relating  to  the 
competency  of  witnesses ;  nor,  in  general,  to  the  admissibility  or  the 
proof  of  written  documents;  nor  in  respect  of  any  other  of  the  general 
rules  of  evidence.  What  Mr.  Phillipps  (I  mention  him  only  as  a  repre- 
sentative of  the  rest)  professes,  under  each  of  the  different  forms  of 
action,  to  tell  you,  is,  what  facts,  in  order  to  support  an  action  in  that 
form,  it  is  necessary  that  you  should  prove  .  .  .  But,  to  enumerate  the 
facts  which  confer  or  take  away  rights,  is  the  main  business  of  what 
is  called  the  civil  branch  of  the  law;  to  enumerate  the  acts  by  which 
rights  are  violated — in  other  words,  to  define  offenses — is  the  main  busi- 
ness of  the  penal  branch.  What,  therefore,  the  lawyers  give  us.  under 
the  appellation  'law  of  evidence,'  is  really,  in  a  great  part  of  it,  civil 
and  penal  law.  .  .  .  Under  the  title  Burglary,  Mr.  Starkie  begins  by 
saying,  that  on  an  indictment  for  burglary,  it  is  essential  to  prove,  ist, 

1 


2  INTRODUCTORY.  No.  1. 

A  felonious  breaking  and  entering;  2dly,  of  the  dwelling-house;  3dly, 
in  the  night  time;  4thly,  with  intent  to  commit  a  felony.  He  then  pro- 
ceeds to  inform  us,  that  there  must  be  evidence  of  an  actual  or  con- 
structive breaking;  for  if  the  entry  was  obtained  through  an  open  door 
or  window,  it  is  no  burglary  .  .  .  Who  does  not  see  that  all  this  is  an 
attempt — a  lame  one,  it  must  be  confessed  (which  is  not  the  fault  of  the 
compiler),  but  still  an  attempt — to  supply  that  definition  of  the  offense 
of  burglary  which  the  substantive  law  has  failed  to  afford?" 


Mr.  Justice  Oliver  Wendell  Holmes,  The  Common  Law  (1881), 
120:  "The  principles  of  substantive  law  which  have  been  established 
by  the  courts  are  believed  to  have  been  somewhat  obscured  by 
having  presented  themselves  oftenest  in  the  form  of  rulings  upon 
the  sufficiency  of  evidence.  When  a  judge  rules  that  there  is  no  evi- 
dence of  negligence,  he  does  something  more  than  is  embraced  in  an 
ordinary  ruling  that  there  is  no  evidence  of  a  fact.  He  rules  that  the 
acts  or  omissions  proved  or  in  question  do  not  constitute  a  ground  of 
legal  liability,  and  in  this  way  the  law  is  gradually  enriching  itself 
from  daily  life,  as  it  should.  Thus,  in  Crafton  v.  Metropolitan  Rail- 
way Co.,'  the  plaintiff  slipped  on  the  defendant's  stairs  and  was 
severely  hurt.  The  cause  of  his  slipping  was  that  the  brass  nosing  of 
the  stairs  had  been  worn  smooth  by  travel  over  it,  and  a  builder  testi- 
fied that  in  his  opinion  the  staircase  was  unsafe  by  reason  of  this 
circumstance  and  the  absence  of  a  handrail.  There  was  nothing  to 
contradict  this  except  that  great  numbers  of  persons  had  passed  over 
the  stairs  and  that  no  accident  had  happened  there,  and  the  plaintiff 
had  a  verdict.  The  Court  set  the  verdict  aside,  and  ordered  a  nonsuit. 
The  ruling  was  in  form  that  there  was  no  evidence  of  negligence  to  go 
to  the  jury;  but  this  was  obviously  equivalent  to  saying,  and  it  did  in 
fact  mean,  that  the  railroad  company  had  done  all  that  it  was  bound 
to  do  in  maintaining  such  a  staircase  as  was  proved  by  the  plaintiff. 
A  hundred  other  equally  concrete  instances  will  be  found  in  the  text- 
books. On  the  other  hand,  if  the  Court  should  rule  that  certain  acts 
or  omissions  coupled  with  damage  were  conclusive  evidence  of  negli- 
gence unless  explained,  it  would,  in  substance  and  in  truth,  rule  that 
such  acts  or  omissions  were  a  ground  of  liability  or  prevented  a  re- 
covery, as  the  case  might  be.  Thus,  it  is  said  to  be  actionable  negli- 
gence to  let  a  house  for  a  dwelling  knowing  it  to  be  so  infected  with 
small-pox  as  to  be  dangerous  to  health,  and  concealing  the  knowledge." 


Scope  of  the  Law  of  Evidence  :2 — "The  question,  therefore,  'Of 

what  Propositions  may  Evidence  be  offered?'  is  not  answered  by  the 

law  of  evidence,  except  in  a  subordinate  way.     The  answer  to 

it   is   made   in   four   parts.     Evidence   may   be   offered   of   such 

Propositions  of  fact  as 

I — L.   R.   1   C.  P.  300.  2 — Quoted  from  W.,  §§  2,  3. 


No,  3.  INTRODUCTORY.  3 

"(o)  Are  material  by  the  substantive  law  to  any  right  or  duty, 
claim  or  defence; 

"(b)  Are  issuable  in  the  case  at  bar  by  the  terms  of  the  pleadings 
under  the  rules  of  pleading; 

"(c)  Are  effective  to  relieve  a  party  from  the  establishment  of  one 
of  the  preceding  propositions ; 

"(d)  Are  admissible  by  the  law  of  evidence  as  evidentiary  facts, 
and  thus  may  become  in  turn  Propositions  to  be  proved. 

"The  first  and  the  second  of  these  classes  clearly  do  not  involve 
the  law  of  evidence.  The  third  class  is  concerned  with  judicial  ad- 
missions and  their  congeners ;  such  are  really  equivalent  to  a  pleading, 
because  they  formally  waive  proof;  they  are  therefore  no  part  of  the 
law  of  evidence  except  for  the  necessity  of  distinguishing  them  from 
other  things  miscalled  admissions.  The  fourth  class  alone  concerns 
intrinsically  the  law  of  evidence.  It  rests  on  the  self-evident  corollary 
that,  since  any  Evidentiary  Fact  may  in  its  turn  become  a  Proposition, 
evidence  to  prove  it  may  then  be  offered.  Thus  the  law  of  evidence 
is  legitimately  concerned  solely  with  the  relation  between  Evidentiary 
Facts  and  Propositions ;  how  a  given  Proposition  comes  to  be  eligible 
for  proof  is  not  a  part  of  the  law  of  evidence. 

"The  Propositions  of  which  evidence  may  be  offered  being  thus 
given  by  the  rules  of  substantive  law  and  of  pleading,  and  the  law  of 
evidence  concerning  itself  solely  with  the  relation  between  Evidentiary 
Facts  and  such  Propositions,  the  settlement  of  that  relation  involves 
obviously  four  distinct  questions: 

"I.  What  Facts  may  he  presented  as  Evidence?  This  is  the  ques- 
tion of  Admissibility. 

"II.  By  whom  must  Evidence  be  presented?  This  is  the  question 
of  Burden  of  Proof,  and,  incidentally,  of  Presumptions. 

"III.  To  whom  must  Evidence  be  presented?  This  involves  the 
relation  of  function  between  Judge  and  Jury,  as  respectively  deciding 
upon  Law  and  Fact. 

"IV.  Of  what  Propositions  in  issue  need  no  Evidence  be  presented? 
This  includes  the  topics  ordinarily  termed  Judicial  Notice  and  Judicial 
Admissions.  The  former  (as  will  be  seen)  is  in  essence  nothing  more 
than  a  rule  of  burden  of  proof.  The  latter  (as  already  noted)  is  in 
effect  equivalent  to  a  rule  of  pleading. 

"All  of  the  last  three  topics  verge  towards  the  border  line  of  what 
is  in  strictness  the  law  of  evidence.  They  involve  and  rest  upon  cer- 
tain larger  aspects  of  procedure  which  are  independent  of  the  evidential 
material.  The  question  who  has  the  burden  of  proof,  for  example,  is 
of  a  piece  with  the  questions  who  shall  open  and  close  the  argument 
and  whether  certain  allegations  require  an  affirmative  or  negative 
pleading.  They  form  a  part  of  a  treatise  on  evidence  merely  because 
their  material  is  chiefly  evidential  material  and  because  their  problems 
have  constantly  to  be  discriminated  from  the  strictly  evidential  prob- 
lems. 


4  INTRODUCTORY.  No.  4. 

"There  are,  indeed,  still  other  topics  which,  because  their  material 
is  partly  or  chiefly  evidential,  might  by  a  broad  treatment  be  included 
in  a  system  of  evidence.  For  example,  the  rules  of  procedure  in  prepa- 
ration for  trial  may  raise  the  question  whether  an  expected  witness 
may  be  detained  or  bonded  before  trial  begun,  or  whether  testimony 
can  be  preserved  by  deposition  taken  before  trial,  or  whether  docu- 
ments needed  for  evidence  can  be  prevented  from  being  carried  out  of 
the  jurisdiction.  So  far  as  any  of  these  rules  of  procedure  affect  the 
subsequent  admissibility  of  the  evidence,  they  plainly  belong  here;  but 
as  rules  of  procedure — i.  e.  telling  whether  a  thing  can  or  cannot  be 
done  before  trial — they  are  in  strictness  not  rules  of  evidence.  Again, 
the  deliberations  of  the  jury  are  governed  by  certain  rules,  prescribing 
the  place  of  retirement,  the  behavior  during  retirement,  the  form  of 
the  verdict,  and  the  like.  Among  these  rules  may  be  some  which 
prescribe  what  effect  of  persuasion  is  to  be  attached  to  different  sorts 
of  evidence,  and  how  the  total  strength  or  sufficiency  of  the  jurors' 
persuasion  is  to  be  measured.  All  these  rules  belong  together,  and  it  is 
only  incidentally  that  some  of  them  concern  evidential  material.  Still 
again,  a  verdict  and  judgment  may  on  appeal  be  set  aside  for  various 
errors  and  defects ;  some  of  these  errors  may  involve  the  circumstance 
that  improper  evidence  has  been  considered.  But  only  as  a  part  of 
the  general  system  of  appeal  and  revision  can  such  rules  be  satisfac- 
torily dealt  with.  They  are  a  part  of  that  system  and  not  of  the  system 
of  evidence." 


LORD  MELVILLE'S  TRIAL    (1806). 

2()  How.  St.  Tr.  246. 

Prosecution  for  the  misapplication  of  public  funds  as  Treasurer  of 
the  Navy.     Certificates  were  offered,  signed  by  the  paymaster,  the  de- 
fendant's subordinate,  acknowledging  the  receipt  of  £45,000  from 
*  the  Exchequer;  these  were  objected  to  as  not  competent  in  a 

criminal  case  to  affect  the  defendant  with  responsibility.  Mr.  Serjeant 
Best,  for  their  reception :  "We  must  first  prove  that  the  money  has  been 
received,  and  after  we  have  satisfactorily  proved  that,  then  comes  the 
evidence  to  prove  what  has  been  its  application  after  it  has  been  re- 
ceived. .  .  .  The  learned  counsel  have  endeavored  to  distinguish  between 
civil  and  criminal  cases.  .  .  .  There  is  a  considerable  distinction  between 
civil  and  criminal  cases,  but  that  distinction  consists  rather  in  the  num- 
ber of  fasts  to  be  proved  than  in  the  manner  of  proving  any  of  them.  It 
is  necessary  that  more  facts  should  be  proved,  for  the  purpose  of  show- 
ing that  a  man  has  money  in  his  possession  or  has  had  money  come 
into  his  possession,  than  to  make  him  civilly  responsible;  but  though 
more  facts  should  be  proved  in  one  case  than  is  necessary  to  be  proved 
in  the  other,  each  particular  fact  is  to  be  proved  by  precisely  the 
same  evidence."  Mr.  Plumcr,  on  the  opposite  side:  "I  desire  it  may 
be  distinctly  understood  that  I  do  not  dispute  that  the  rules  of    evi- 


No,  6.  INTRODUCTORY.  5 

dence  are  the  same  in  both.  .  .  .  What  is  the  distinction,  then?  ...  It 
is  not  that  the  rules  of  evidence  are  at  all  altered,  but  that  when  you 
are  looking  at  the  individual  who  stands  in  a  civil  relation,  and  are 
pursuing  it  with  that  view,  there  is  an  identity  of  persons  between  the 
agent  and  principal,  and  all  that  one  has  done  or  said  is  done  or  said 
by  the  other;  .  .  .  [but  otherwise  for  criminal  responsibility].  We  are 
not  contending  that  the  rules  of  law  are  different  in  the  two  cases, 
but  that  the  ultimate  result  of  the  inquiry  makes  that  which  is  com- 
petent, legal,  and  proper  in  one  case  not  so  in  the  other." 

Lord  Chancellor  Erskine  took  the  view  that  the  certificate  was  ad- 
missible to  show  the  authorized  reception  of  the  monies  by  the  agent, 
but  not  that  the  money  actually  reached  the  defendant ;  and  proceeded : 
"This  first  step  in  the  proof  must  advance  by  evidence  applicable  alike 
to  civil  as  to  criminal  cases;  for  a  fact  must  be  established  by  the 
same  evidence,  whether  it  is  to  be  followed  by  a  criminal  or  a  civil 
consequence.  But  it  is  a  totally  different  question,  in  the  consideration 
of  criminal  as  distinguished  from  civil  justice,  how  the  noble  person 
now  on  trial  may  be  affected  by  the  fact  when  so  established.  The 
receipt  by  the  paymaster  would  in  itself  involve  him  civilly,  but  could 
by  no  possibility  convict  him  of  a  crime. "^ 


United  States  Revised  Statutes  i8y8,  §  221  (repeating  St.  1789, 
c.  20,  s.  34)  :  "The  laws  of  the  several  States,  except  where  the  Con- 
stitution, treaties,  or  statutes  of  the  United  States  otherwise  re- 
quire  or  provide,  shall  be  regarded  as  rules  of  decision  in  trials 
at  common  law,  in  the  Courts  of  the  United  States,  in  cases  where  they 
apply."  Ibid.  §  858  (combining  statutes  of  1862,  1864,  and  1865)  ; 
after  enacting  certain  provisions  as  to  qualifications  of  witnesses,  it 
continues :  "In  all  other  respects  the  laws  of  the  State  in  which  the 
trial  is  held  shall  be  the  rules  of  decision  as  to  the  competency  of  wit- 
nesses in  the  courts  of  the  United  States  in  trials  at  common  law,  and 
in  equity  and  admiralty."* 


General  Survey  of  the  Historical  Development  of  the  Rules 
OF  Evidence.^     "It  is  worth  while  to  notice  here  summarily  the  his- 
torical  development    of   the   general    system   of   evidence    in   its 
"  main  features,  and  the  relative  chronology  of  the  different  rules. 

Some  notion  can  thus  be  obtained  of  the  influence  of  certain  external 

3 — C.    P.    Cooper,    Notes    to    Reports    of  admissible  at  common  law,  it  must  not  be 

Lord  Cottenham's  Cases  in  Chancery  (circa  understood    that    such    evidence    was    abso- 

1846),  /,  50Q:     "Conclusions  drawn   by  the  lutely    rejected    or    was   held    entirely   inad- 

author   from   the   various   authorities  in   the  missible,    but    only    that    it    was    laid    aside, 

books:      Conclusion    i.      That    what    is    evi-  that    it    was    put    out    of    consideration,    as 

dence   in    a   court    of   law    is   evidence    in    a  regarded    any    decree   or    order   binding   the 

court   of   equity,    and    that   evidence    which  interest   of  the  party  against   whom   it   was 

is  admissible  in  a  court  of  law  is  admissible  adduced." 

in  a  court   of  eqviity.     Conclusion   2.    That  Compare   the      authorities     cited   in  W., 

when  it   is   said  in   some  of  the  cases  that  §  4. 

the    Court    rejected    evidence    or    held    evi-  4 — Compare  the  authorities  cited  in  W., 

dence  to  be   inadmissible  which   would  have  §   6. 

been    received    or    would    have    been    held  s — Quoted   from   W.,   §  8. 


b  INTRODUCTORY.  No.  6. 

circumstances  on  the  rules  at  large,  and  of  some  of  the  individual  prin- 
ciples upon  the  others. 

"The  marked  divisions  of  chronology,  for  our  law  of  evidence,  may 
be  said  to  be  seven, — from  primitive  times  to  1200  a.  d.,  thence  to  1500, 
thence  to  1700,  to  1790,  to  1830,  to  i860,  and  to  the  present  time: 

"(i)  A.  D.  700-1200.  Up  to  the  period  of  the  1200s,  the  history  of 
the  rules  of  evidence,  in  the  modern  sense,  is  like  the  chapter  upon 
ophidians  in  Erin;  for  there  w^ere  none.  Under  the  primitive  practices 
of  trial  by  ordeal,  by  battle,  and  by  compurgation,  the  proof  is  accom- 
plished by  a  judicium  Dei,  and  there  is  no  room  for  our  modern  notion 
of  persuasion  of  the  tribunal  by  the  credibility  of  the  witnesses;^  for 
the  tribunal  merely  verified  the  observance  of  the  due  formalities,  and 
did  not  conceive  of  these  as  directly  addressed  to  their  own  reasoning 
powers.  Nevertheless,  a  few  marks,  indelibly  made  by  these  earlier 
usages,  were  left  for  a  long  time  afterwards  in  our  law.  The  sum- 
moning of  attesting  witnesses  to  prove  a  document,  the  quantitative 
effect  of  an  oath,  the  conclusiveness  of  a  seal  in  fixing  the  terms  of  a 
documentary  transaction,  the  necessary  production  of  the  original  of  a 
document, — these  rules  all  trace  a  continuous  existence  back  to  this 
earliest  time,  although  they  later  took  on  different  forms  and  survived 
for  reasons  not  at  all  connected  with  their  primitive  theories. 

"(2)  A.  D.  1 200-1 500.  With  the  full  advent  of  the  jury,  in  the 
1200S,  the  general  surroundings  of  the  modern  system  are  prepared; 
for  now  the  tribunal  is  to  determine  out  of  its  own  conscious  persua- 
sion of  the  facts,  and  not  merely  by  supervising  external  tests.  The 
change  is  of  course  gradual ;  and  trial  by  jury  is  as  yet  only  one  of 
several  competing  methods ;  but  at  least  a  system  for  the  process  of 
persuasion  becomes  possible.  In  this  period,  no  new  specific  rules 
seem  to  have  sprung  up.  The  practice  for  attesting  witnesses,  oaths 
and  documentary  originals  is  developed.  The  rule  for  the  conclusive- 
ness of  a  sealed  writing  is  definitely  established.  But  during  these 
three  centuries  the  general  process  of  pleading  and  procedure  is  only 
gradually  differentiated  from  that  of  proof, — chiefly  because  the  jurors 
are  as  yet  relied  upon  to  furnish  in  themselves  both  knowledge  and 
decision ;  for  they  are  not  commonly  caused  to  be  informed  by  wit- 
nesses, in  the  modern  sense. 

"(3)  A.  D.  i')00-iyoo.  By  the  1500s,  the  constant  employment  of 
witnesses,  as  the  jury's  chief  source  of  information,  brings  about  a 
radical  change.  Here  enter,  very  directly,  the  possibilities  of  our  mod- 
ern system.  With  all  the  emphasis  gradually  cast  upon  the  witnesses, 
their  words  and  their  documents,  the  whole  question  of  admissibility 
arises.  One  first  great  consequence  is  the  struggle  between  the  numer- 
ical or  quantitative  system,  which  characterized  the  canon  law  and 
still  dominated  all  other  methods  of  proof,  and  the  unfettered  system- 

6 — This  is  indeed  elaborately  denied  by  prior  students  have  assumed  the  contrary. 
Declareuil,  in  Nouvelle  revue  hist,  du  droit  It  is  no  doubt  difficult  to  replace  ourselves 
fr.    et    etr.    1898,    XXII,    220    ff.;    but   all       in  the  primitive  mental  attitude. 


No.  6.  INTRODUCTORY.  7 

less  jury  trial;  and  it  was  not  for  two  centuries  that  the  numerical 
system  was  finally  repulsed.  Another  cardinal  question  now  necessarily 
faced  was  that  of  the  competency  of  witnesses;  and  by  the  end  of  the 
1 500s  the  foundations  were  laid  for  all  the  rules  of  disqualifications 
which  prevailed  thenceforward  for  more  than  two  centuries,  and  in 
part  still  remain.  At  the  same  time,  and  chiefly  from  a  simple  failure 
to  differentiate,  most  of  the  rules  of  privilege  and  privileged  communi- 
cation were  thereby  brought  into  existence,  at  least  in  embryo.  The 
rule  for  attorneys,  which  alone  stood  upon  its  own  ground,  also  be- 
longs here,  though  its  reasons  were  newly  conceived  after  the  lapse 
of  a  century.  A  third  great  principle,  the  right  to  have  compulsory 
attendance  of  witnesses,  marks  the  very  beginning  of  this  period. 
Under  the  primitive  notions,  this  all  rested  upon  the  voluntary  action 
of  one's  partisans ;  the  calling  of  compurgators  and  documentary  at- 
testors, under  the  older  methods  of  trial,  was  in  effect  a  matter  of 
contract.  But  as  soon  as  the  chief  reliance  came  to  be  the  witnesses 
to  the  jurors,  and  the  latter  ceased  to  act  on  their  own  knowledge,  the 
necessity  for  the  provision  of  such  information,  compulsory  if  not 
otherwise,  became  immediately  obvious.  The  idea  progressed  slowly; 
it  was  enforced  first  for  the  Crown,  next  for  civil  parties ;  and  not 
until  the  next  period  was  it  conceded  to  accused  persons.  Thus  was 
laid  down  indirectly  the  general  principle  that  there  is  no  privilege  to 
refuse  to  be  a  witness ;  to  which  the  other  rules,  above  mentioned,  subse- 
quently became  contrasted  as  exceptions.  A  fourth  important  principle, 
wholly  independent  in  origin,  here  also  arose  and  became  fixed  by  the 
end  of  this  period, — the  privilege  against  self-crimination.  The  crea- 
ture, under  another  form,  of  the  canon  law,  in  which  it  had  a  long 
history  of  its  own,  it  was  transferred,  under  stress  of  political  tur- 
moil, into  the  common  law,  and  thus,  by  a  singular  contrast,  came  to 
be  a  most  distinctive  feature  of  our  trial  system.  About  the  same 
period — the  end  of  the  1600s — an  equally  distinctive  feature,  the  rule 
against  using  an  accused's  character,  became  settled.  Finally,  the 
'parol  evidence'  rule  enlarged  its  scope,  and  came  to  include  all  writ- 
ings and  not  merely  sealed  documents ;  this  development,  and  the 
enactment  of  the  statute  of  frauds  and  perjuries,  represent  a  special 
phase  of  thought  in  the  end  of  this  period.  It  ends,  however,  rather 
with  the  Restoration  of  1660  than  with  the  Revolution  of  1688,  or  the 
last  years  of  the  century;  for  the  notable  feature  of  it  is  that  the  re- 
generating results  of  the  struggle  against  the  arbitrary  methods  of 
James  I  and  Charles  I  began  to  be  felt  as  early  as  the  return  of 
Charles  TI.  The  mark  of  the  new  period  is  seen  at  the  Restoration. 
Justice,  on  all  hands,  then  begins  to  mend.  Crudities  which  Matthew 
Hale  permitted,  under  the  Commonwealth,  Scroggs  put  aside,  under 
James  II.  The  privilege  against  self-crimination,  the  rule  for  two 
witnesses  in  treason,  and  the  character  rule — three  landmarks  of  our 
law  of  evidence — find  their  first  full  recognition  in  the  last  days  of 
the  Stuarts. 


8  INTRODUCTORY.  No.  6. 

"(4)  A.  D.  i/00-i/po.  Two  circumstances  now  contributed  inde- 
pendently to  a  further  development  of  the  law  on  two  opposite  sides, 
its  philosophy  and  its  practical  efficiency.  On  the  one  hand,  the  final 
establishment  of  the  right  of  cross-examination  by  counsel,  at  the 
beginning  of  the  1700s,  gave  to  our  law  of  evidence  the  distinction  of 
possessing  the  most  efficacious  expedient  ever  invented  for  the  extrac- 
tion of  truth  (although,  to  be  sure,  like  torture, — that  great  instru- 
ment of  the  continental  system, — it  is  almost  equally  powerful  for  the 
creation  of  false  impressions).  A  notable  consequence  was  that  by  the 
multiplication  of  oral  interrogation  at  trials  the  rules  of  evidence  were 
now  developed  in  detail  upon  such  topics  as  naturally  came  thus  into 
new  prominence.  All  through  the  1700s  this  expansion  proceeded, 
though  slowly.  On  the  other  hand,  the  already  existing  material 
began  now  to  be  treated  in  doctrinal  form.  The  first  treatise  on  the 
law  of  evidence  was  that  of  Chief  Baron  Gilbert,  not  published  till 
after  his  death  in  1726.  About  the  same  time  the  abridgments  of 
Bacon  and  of  Comyns  gave  many  pages  to  the  title  of  Evidence;*  but 
no  other  treatise  appeared  for  a  quarter  of  a  century,  when  the  notes 
of  Mr.  J.  Bathurst  (later  Lord  Chancellor)  were  printed,  under  the 
significant  title  of  the  'Theory  of  Evidence.'  But  this  propounding 
of  a  system  was  as  yet  chiefly  the  natural  culmination  of  the  prior 
century's  work,  and  was  independent  of  the  expansion  of  practice  now 
going  on.  In  Gilbert's  book,  for  example,  even  in  the  fifth  edition  of 
1788,  there  are  in  all,  out  of  the  three  hundred  pages,  less  than  five 
concerned  with  the  new  topics  brought  up  by  the  practice  of  cross- 
examination;  in  Bathurst's  treatise  (by  this  time  embodied  in  his 
nephew  BuUer's  'Trials  at  Nisi  Prius')  the  number  is  hardly  more;: 
Blackstone's  Commentaries,  in  1768,  otherwise  so  full,  are  here  equally 
barren.  The  most  notable  result  of  these  disquisitions,  on  the  the- 
oretical side,  was  the  establishment  of  the  'best  evidence'  doctrine, 
which  dominated  the  law  for  nearly  a  century  later.  But  this  very 
doctrine  tended  to  preserve  a  general  consciousness  of  the  supposed 
simplicity  and  narrowness  of  compass  of  the  law  of  evidence.  As  late 
as  the  very  end  of  the  century  Mr.  Burke  could  argue  down  the  rules 
of  evidence,  when  attempted  to  be  enforced  upon  the  House  of  Lords 
at  Warren  Hastings'  trial,  and  ridicule  them  as  petty  and  inconsider- 
able.^ But,  none  the  less,  the  practice  had  materially  expanded  during 
his  lifetime.  In  this  period,  besides  the  rules  for  impeachment  and 
corroboration  of  witnesses  (which  were  due  chiefly  to  the  development 
of  cross-examination),  are  to  be  reckoned  also  the  origins  of  the  rules 
for  confessions,  for  leading  questions,  and  for  the  order  of  testimony. 
The  various  principles  affecting  documents — such  as  the  authorization 

8 — Hawkins,  in   1716,  and  Hale,  in   1680,  the    law    of    Evidence,    but    very    general, 

in  their  treatises  on   the  criminal  law,  had  very    abstract,    and   comprised    in    so   small 

had    short    chapters    on    evidence    at    these  a    compass    that    a    parrot    he    had    known 

earlier  dates.  might    get   them   by   rote    in    one   half-hour 

9 — "As  to  rules  of  law  and  evidence,  he  and    repeat    them    in    five    minutes"    (1794^ 

did    not    know    what    they    meant;  ...  it  Hastings'  Trial,  Lords'  Journal,  Feb.  25). 
was    true,    something   had   been   written    on 


No.  6.  INTRODUCTORY.  9 

of  certified  (or  office)  copies  and  the  conditions  dispensing  from  the 
production  of  originals — now  also  received  their  general  and  final  shape. 

"(5)  A.  D.  i/po-i8^o.  The  full  spring-tide  of  the  system  had  now- 
arrived.  In  the  ensuing  generation  the  established  principles  began 
to  be  developed  into  rules  and  precedents  of  minutiae  relatively  innu- 
merable to  what  had  gone  before.  In  the  Nisi  Prius  reports  of  Peake, 
Espinasse,  and  Campbell,  centering  around  the  quarter-century  from 
1790  to  181 5,  there  are  probably  more  rulings  upon  evidence  than  in 
all  the  prior  reports  of  two  centuries.  In  this  development  the  dom- 
inant influence  is  plain;  it  was  the  increase  of  printed  reports  of  Nisi 
Prius  rulings. ^°  This  was  at  first  the  cause,  and  afterwards  the  self- 
multiplying  effect,  of  the  detailed  development  of  the  rules.  Hitherto, 
upon  countless  details,  the  practice  had  varied  greatly  on  the  different 
circuits ;  moreover,  it  had  rested  largely  in  the  memory  of  the  experi- 
enced leaders  of  the  trial  bar  and  in  the  momentary  discretion  of  the 
judges.  In  both  respects  it  therefore  lacked  fixity,  and  was  not  amen- 
able to  tangible  authority.  These  qualities  it  no\v  rapidly  gained.  As 
soon  as  Nisi  Prius  reports  multiplied  and  became  available  to  all,  the 
circuits  must  be  reconciled,  the  rulings  once  made  and  recorded  must 
be  followed,  and  these  precedents  must  be  open  to  the  entire  profession 
to  be  invoked.  There  was,  so  to  speak,  a  sudden  precipitation  of  all 
that  had  hitherto  been  suspended  in  solution.  This  effect  began  imme- 
diately to  be  assisted  and  emphasized  by  the  appearance  of  new  treat- 
ises, summing  up  the  recent  acquisitions  of  precedent  and  practice. 
In  nearly  the  same  year,  Peake,  for  England  (1801),  and  MacNally, 
for  Ireland  (1802),  printed  small  volumes  whose  contents,  as  com- 
pared with  those  of  Gilbert  and  Buller,  seem  to  represent  almost  a 
different  system,  so  novel  were  their  topics.  In  1806,  Evans'  Notes 
to  Pothier  on  Obligations  was  made  the  vehicle  of  the  first  reasoned 
analysis  of  the  rules.  In  this  respect  it  was  epoch-making;  and  its 
author  in  a  later  time  once  quietly  complained  that  its  pages  were 
'more  often  quoted  than  acknowledged.'  The  room  for  new  treatises 
were  rapidly  enlarging.  Peake  and  MacNally,  as  handbooks  of  practice, 
were  out  of  date  within  a  few  years,  and  no  new  editions  could  cure 
them.  In  1814,  and  then  in  1824,  came  Phillipps  and  Starkie, — in  method 
combining  Evans'  philosophy  with  Peake's  strict  reflection  of  the  details 
of  practice.  There  was  now  indeed  a  system  of  evidence,  consciously 
and  fully  realized.  Across  the  water  a  similar  stage  had  been  reached. 
By  a  natural  interval  Peake's  treatise  was  balanced,  in  1810,  by  Swift's 
Connecticut  book,  while  Phillipps  and  Starkie  (after  a  period  of  suffi- 
ciency under  American  annotations)  were  replaced  by  Greenleaf's  treat- 
ise of  1842. 

"(6)  A.D.  t8^o-i86o.  Meantime,  the  advance  of  consequences  was 
proceeding,  by  action  and  reaction.  The  treatises  of  Peake  and  Phil- 
lipps, by  embodying  in  print  the  system  as  it  existed,  at  the  same  time 

10 — Compare    Campbell's    account    of   the        1807  (Life,  I,  214). 
conditions    when    he    began    to    report    in 


10  INTRODUCTORY.  No.  6. 

exposed  it  to  the  light  of  criticism.  It  contained,  naturally  enough, 
much  that  was  merely  inherited  and  traditional,  much  that  was  out- 
grown and  outworn.  The  very  efforts  to  supply  explicit  reasons  for 
all  this  made  it  the  easier  to  puncture  the  insufficient  reasons  and  to 
impale  the  irrational  rules.  This  became  the  office  of  Bentham.  Be- 
ginning with  the  first  publication,  in  French,  of  his  Theory  of  Judicial 
Evidence,  in  1818,  the  influence  of  his  thought  upon  the  law  of  evi- 
dence gradually  became  supreme.  While  time  has  only  ultimately  vin- 
dicated and  accepted  most  of  his  ideas  (then  but  chimeras)  for  other 
practical  reforms,  and  though  some  still  remain  imtried,  the  results  of  his 
proposals  in  this  department  began  almost  immediately  to  be  achieved. 
Mature  experience  constantly  inclines  us  to  believe  that  the  best  results 
on  human  action  are  seldom  accomplished  by  sarcasm  and  invective; 
for  the  old  fable  of  the  genial  sun  and  the  raging  wind  repeats  itself. 
But  Bentham's  case  must  always  stand  out  as  a  proof  that  sometimes 
the  contrary  is  true, — if  conditions  are  meet.  No  one  can  say  how  long 
our  law  might  ha\e  waited  for  regeneration,  if  Bentham's  diatribes  had 
not  lashed  the  community  into  a  sense  of  its  shortcomings.  It  is  true 
that  he  was  particularly  favored  by  circumstances  in  two  material  re- 
spects,— the  one  personal,  the  other  broadly  social.  He  gained,  among 
others,  two  incomparable  disciples,  who  served  as  a  fulcrum  from  which 
his  lever  could  operate  directly  upon  legislation.  Henry  Brougham  and 
Thomas  Denman  combined  with  singular  felicity  the  qualities  of  leader- 
ship in  the  technical  arts  of  their  profession  and  of  energy  for  the 
abstract  principles  of  progress.  Holding  the  highest  offices  of  justice, 
and  working  through  a  succession  of  decades,  they  were  enabled,  within 
a  generation,  to  bring  Bentham's  ideas  directly  into  influence  upon  the 
law.  One  who  reads  the  great  speech  of  Brougham,  on  February  7, 
1828,  on  the  state  of  the  common  law  courts,  and  the  reports  of  Den- 
man and  his  colleagues,  in  1852  and  1853,  on  the  common  law  pro- 
cedure, is  perusing  epoch-making  deliverances  of  the  century.^^  The 
other  circumstance  that  favored  Bentham's  cause  was  the  radical  readi- 
ness of  the  times.  The  French  Revolution  had  acted  in  England;  and 
as  soon  as  the  Napoleonic  wars  were  over,  the  influence  began  to  be 
felt.  One  part  of  public  opinion  was  resolved  to  achieve  a  radical 
change;  the  other  and  dominant  part  felt  assured  that  if  the  change  did 
not  come  as  reform,  it  would  come  as  revolution;  and  so  the  reform 
was  given,  to  prevent  the  revolution.  In  a  sense,  it  did  not  much  mat- 
ter to  them  where  the  reform  came  about, — in  the  economic,  or  the 
political,  or  the  juridical  field, — if  only  there  was  reform.  At  this  stage. 
Bentham's  denouncing  voice  concentrated  attention  on  the  subject  of 
public  justice, — criminal  law  and  civil  procedure;  and  so  it  was  here 
that  the  movement  was  felt  among  the  first.     As  a  matter  of  chrono- 

II — "The    great    controversy    now    [1851]  justice    in    this   country"    (Campbell's    Life, 

is    upon    the     Evidence    Bill,    allowing    the  II,    202).      "Our    new    procedure    (which   is 

parties    to    be    examined    against     and     for  in    truth     a     juridical     revolution)     is    now 

themselves.  ...  If    it    passes,    it    will    ere-  [1854]   established,  and  people  submit  to  it 

ate    a    new    era    in    the    administration    of  quietly"  (lb.,  II,  328). 


No,  6.  INTRODUCTORY.  11 

logical  order,  the  first  considerable  achievements  were  in  the  field  of 
criminal  law,  beginning  in  1820,  under  Romilly  and  Mackintosh;  then 
came  the  political  upheaval  of  the  Reform  Bill,  in  1832,  under  Russell 
and  Grey;  next  the  economic  regeneration,  beginning  with  Huskisson 
and  culminating  with  Peel  in  the  Corn  Law  Repeal  of  1846.  Not  be- 
fore the  Common  Law  Procedure  Acts  of  1852  and  1854  were  large 
and  final  results  achieved  for  the  Benthamic  ideas  in  procedure  and 
evidence.  But  over  the  whole  preceding  twenty  years  had  been  spread 
initial  and  instructive  reforms.  Brougham's  speech  of  February  7, 
1828,  was  the  real  signal  for  the  beginning  of  this  epoch, — a  beginning 
which  would  doubtless  have  culminated  more  rapidly  if  urgent  economic 
and  political  crises  had  not  intervened  to  absorb  the  legislative  energy. 

"In  the  United  States,  the  counterpart  of  this  period  came  only  a 
little  later.  It  seems  to  have  begun  all  along  the  line  and  was  doubtless 
inspired  by  the  accounts  of  progress  made  and  making  in  England,  as 
well  as  by  the  writings  of  Edward  Livingston,  the  American  Bentham, 
and  by  the  legislative  efforts  of  David  Dudley  Field,  in  the  realm  of 
civil  procedure.  The  period  from  1840  to  1870  saw  the  enactment,  in 
the  various  jurisdictions  in  this  country,  of  most  of  the  reformatory 
legislation  which  had  been  carried  or  proposed  in  England. 

"(7)  A.  D.  i860.  After  the  Judicature  Act  of  1875,  and  the  Rules 
of  Court  (of  1883)  which  under  its  authority  were  formulated,  the  law 
of  evidence  in  England  attained  rest.  It  is  still  overpatched  and  dis- 
figured with  multiplicitous  fragmentary  statutes,  especially  for  documen- 
tary evidence.  But  it  seems  to  be  harmonious  with  the  present  demands 
of  justice,  and  above  all  to  be  so  certain  and  settled  in  its  acceptance 
that  no  further  detailed  development  is  called  for.  It  is  a  sub-stratum 
of  the  law  which  comes  to  light  only  rarely  in  the  judicial  rulings  upon 
practice. 

"Far  otherwise  in  this  country.  The  latest  period  in  the  development 
of  the  law  of  evidence  is  marked  by  a  temporary  degeneracy.  Down  to 
about  1870,  the  established  principles,  both  of  common  law  rules  and  of 
statutory  reforms,  were  re-stated  by  our  judiciary  in  a  long  series  of 
opinions  which,  for  careful  and  copious  reasoning,  and  for  the  common 
sense  of  experience,  were  superior  (on  the  whole)  to  the  judgments 
uttered  in  the  native  home  of  our  law.  Partly  because  of  the  l^ck  of 
treatises  and  even  of  reports, — partly  because  of  the  tendency  to  ques- 
tion imported  rules  and  therefore  to  defend  on  grounds  of  principle  and 
policy  whatever  could  be  defended, — partly  because  of  the  moral  com- 
pulsion upon  the  the  judiciary,  in  new  communities,  to  vindicate  by 
intellectual  effort  its  right  to  supremacy  over  the  bar, — and  partly  also 
because  of  the  advent,  coincidently,  of  the  same  rationalizing  spirit 
which  led  to  the  reformatory  legislation, — this  very  necessity  of  re- 
statement led  to  the  elaboration  of  a  finely  reasoned  system.  The 
'mint,  anise,  and  cummin'  of  mere  precedent'-  were  not  unduly  revered. 
There  was  always  a  reason  given, — even  though  it  might  not  always  be  a 
worthy  reason.     The  pronouncement  of  Bentham  came  near  to  be  exem- 

12 — Lumpkin,  J.,  in  3,-(   Ga.  306. 


12  INTRODUCTORY.  No.  6. 

plified,  that  'so  far  as  evidence  is  concerned,  the  EngHsh  practice  needs 
no  improvement  but  from  its  ovv^n  stores.  Consistency,  consistency,  is 
the  one  thing  needful.  Preserve  consistency,  and  perfection  is  accom- 
pHshed.'^^ 

"But  the  newest  States  in  time  came  to  be  added.  New  reports 
spavined  a  multifarious  mass  of  new  rulings  in  fifty  jurisdictions, — 
each  having  theoretically  an  equal  claim  to  consideration.  The  liberal 
spirit  of  choosing  and  testing  the  better  rule  degenerated  into  a  spirit 
of  empiric  eclecticism  in  w^hich  all  things  could  be  questioned  and  re- 
questioned  ad  infinitum.  The  partisan  spirit  of  the  bar,  contesting  des- 
perately on  each  trifle,  and  the  unjust  doctrine  of  new  trials,  tempting 
counsel  to  push  up  to  the  appellate  courts  upon  every  ruling  of  evidence, 
increased  this  tendency.  Added  to  this  was  the  supposed  necessity  in 
the  newer  jurisdictions  of  deciding  over  again  all  the  details  that  had 
been  long  settled  in  the  older  ones.  Here  the  lack  of  local  traditions 
at  the  bar  and  of  self-confidence  on  the  bench  led  to  the  tedious  re- 
exposition  of  countless  elementary  rules.  This  lack  of  peremptoriness 
on  the  supreme  bench,  and  (no  less  important)  the  marked  separation 
of  personality  between  courts  of  trial  and  courts  of  final  decision,  led 
also  to  the  multifarious  heaping  up,  within  each  jurisdiction,  of  rulings 
upon  rulings  involving  identical  points  of  decision.  This  last  phenom- 
enon may  be  due  to  many  subtly  conspiring  causes.  But  at  any  rate 
the  fact  is  that  in  numerous  instances,  and  in  almost  every  jurisdiction, 
recorded  decisions  of  Supreme  Courts  upon  precisely  the  same  rule  and 
the  same  application  of  it  can  be  reckoned  by  the  dozens  and  scores. 
This  wholly  abnormal  state  of  things — in  clear  contrast  to  that  of  the 
modern  English  epoch — is  the  marked  feature  of  the  present  period  of 
development  in  our  own  country. 

"Of  the  change  that  is  next  to  come,  and  of  the  period  of  its  arrival,, 
there  seem  as  yet  to  be  no  certain  signs.  Probably  it  will  come  either 
in  the  direction  of  the  present  English  practice — by  slow  formation  of 
professional  habits — or  in  the  direction  of  attempted  legislative  relief 
from  the  mass  of  bewildering  judicial  rulings — by  a  concise  code.  The 
former  alone  might  suffice.  But  the  latter  will  be  a  false  and  futile 
step,  unless  it  is  founded  upon  the  former ;  and  in  any  event  the  danger 
is  that  it  will  be  premature.  A  code  fixes  error  as  well  as  truth.  No 
code  can  be  worth  casting,  until  there  has  been  more  explicit  discussion 
of  the  reasons  for  the  rules  and  more  study  of  them  from  the  point  of 
view  of  synthesis  and  classification.  The  time  must  first  come  when, 
in  the  common  understanding  and  acceptance  of  the  profession,  'every 
rule  is  referred  articulately  and  definitely  to  an  end  which  it  subserves, 
and  when  the  grounds  for  desiring  that  end  are  stated  or  are  ready  to 
be  stated  in  words.'  "^* 

13— Rationale  of  Judicial  Evidence,  b.  X,  have    no    need    to    think    or    be    thought 

conclusion.    Bentham  never  failed  to  preach  about,'    is    the   argument    of   jurisprudence" 

the   impropriety  of  not    furnishing   reasons.  (b.    II,    c.    X,    §    12;    so    also    in    b.    Ill,    C 

"  'I    think,    therefore    I    exist,'    was    the    ar-  IV,    note), 

gument  of  Descartes;   'I   exist,   therefore  I  14— Mr.   Justice  Holmes. 


BOOK    I. 

WHAT  FACTS  MAY  BE  PRESENTED  AS 

EVIDENCE. 

(ADMISSIBILITY.) 


INTRODUCTORY. 

Classification  of  the  Rules  of  Admissibility,^  "It  follows,  from 
the  foregoing  considerations,  that  the  rules  of  admissibility  may  be 
grouped  under  three  heads,  the  first  dealing  with  the  probative 
*  value  of  specific  facts,  the  second  including  artificial  rules  which 

do  not  profess  to  define  probative  value  but  yet  aim  at  increasing  or 
safeguarding  it,  and  the  third  covering  all  those  rules  v/hich  rest  on 
extrinsic  policies  irrespective  of  probative  value. 

"The  first  group  of  rules  (Part  I,  post)  attempts  to  define,  for  legal 
purposes,  the  amount  of  probative  value  which  suffices  to  entitle  a  fact 
to  be  regarded  as  evidential.  Here  the  law  is  concerned  with  the  rules 
of  logic  and  inference  as  applied  in  practical  experience,  i.  e.,  with  Rel- 
evancy. Circumstantial,  Testimonial,  and  'Real'  evidence  are  the  three 
great  classes ;  and  each  has  its  special  problems. 

"The  second  group  of  rules  (Part  II,  post)  lays  down  auxiliary  tests 
and  safeguards,  usually  for  particular  kinds  of  facts,  over  and  above 
the  required  minimum  probative  value.  The  hearsay  rule,  the  rules  of 
quantity,  the  rule  of  the  oath,  and  a  dozen  others,  belong  here.  An 
analysis  of  the  general  policy  and  relation  of  this  group  to  the  others 
is  elsewhere  made  (§  1171,  post). 

"The  third  group  of  rules  (Part  III,  post)  invokes,  for  the  exclusion 
of  certain  kinds  of  facts,  extrinsic  policies  which  override  the  policy  of 
ascertaining  the  truth  by  all  available  means.  These  rules  concede  that 
the  evidence  in  question  has  all  the  probative  value  that  can  be  required, 
and  yet  exclude  it  because  its  admission  would  injure  some  other  cause 
more  than  it  would  help  the  cause  of  truth,  and  because  the  avoidance 
of  that  injury  is  considered  of  more  consequence  than  the  possible 
harm  to  the  cause  of  truth.     Most  of  these  rules  consist  in  giving  cer- 

I— Quoted  from  W.,  §  ti. 

13 


14  ADMISSIBILITY.  No.  7, 

tain  kinds  of  persons  an  option — i.  e.  a  Privilege — to  withhold  the  evi- 
dential fact. 

"Finally  a  group  of  rules  (Part  IV,  post)  knov^n  as  the  Parol  Evi- 
dence rule,  but  belonging  really  to  the  substantive  law,  remains  to  be 
considered,  since  by  tradition  it  has  been  ranked  among  the  rules  of 
evidence." 


Professor  James  Bradley  Thayer,  Preliminary  Treatise  on  Evi- 
dence (i8p8),  pp.  ip8,  264,  268:  "There  is  one  precept  to  be  mentioned, 
which  is  not  so  much  a  rule  of  evidence  as  a  presupposition 
involved  in  the  very  conception  of  a  rational  system  of  evidence 
as  contrasted  with  the  old  formal  and  mechanical  systems,  viz.,  that 
nothing  which  is  not  supposed  to  be  relevant,  i.  e.,  logically  probative, 
shall  be  received.  .  .  .  Reasoning,  the  rational  method  of  settling 
disputed  questions,  is  the  modern  substitute  for  certain  formal  and 
mechanical  tests  which  flourished  among  our  ancestors  for  centuries,  / 
and  in  the  midst  of  which  the  trial  by  jury  emerged.  When  two  men 
to-day  settle  which  is  the  'best  man'  by  a  prize-fight,  we  get  an  accurate 
notion  of  the  old  Germanic  trial.  Who  is  it  that  'tries'  the  question? 
The  men  themselves.  There  are  referees  and  rules  of  the  game,  but  no 
determination  of  the  dispute  on  the  grounds  of  reason, — by  the  rational 
method.  So  it  was  with  'trial  by  battle'  in  our  old  law;  the  issue  of 
right,  in  a  writ  of  right,  including  all  elements  of  law  and  fact,  was 
'tried'  by  this  physical  struggle,  and  the  judges  of  the  Common  Pleas 
sat,  like  the  referee  at  a  prize-fight,  simply  to  administer  the  procedure, 
the  rules  of  the  game.  So  of  the  King's  Bench  in  criminal  appeals; 
and  so  sat  Richard  II  at  the  trial  of  the  appeal  of  treason  between 
Bolingbroke  and  Norfolk,  as  Shakespeare  represents  it  in  the  play.  So 
of  the  various  ordeals ;  the  accused  party  'tried'  his  own  case  by  under- 
going the  given  requirement  as  to  hot  iron,  or  water,  or  the  crumb.  So 
of  the  oath;  the  question,  both  law  and  fact,  was  'tried'  merely  by  the 
oath,  with  or  without  fellow-swearers.  The  old  'trial  by  witnesses'  was 
a  testing  of  the  question  in  like  manner  by  their  mere  oath.  So  a  rec- 
ord was  said  to  'try'  itself.  And  so  when  out  of  the  midst  of  these 
methods  first  came  the  trial  by  jury,  it  was  the  jury's  oath,  or  rather 
their  verdict,  that  'tried'  the  case.  .  .  .  There  is  another  precept 
which  it  is  convenient  to  lay  down  as  a  preliminary  one  in  stating  the 
law  of  evidence,  viz.,  that,  unless  excluded  by  some  ruje  or  principle 
of  law,  all  that  is  logically  probative  is  admissible.  This  general  admis- 
sibility of  what  is  logically  probative  is  not,  like  the  former  precept,  a 
necessary  presupposition  in  a  rational  system  of  evidence,  .  .  .  but  yet 
...  it  is  important  to  notice  this  also  as  being  a  fundamental  proposi- 
tion. In  a  historical  sense,  it  has  not  been  the  fundamental  rule  to 
which  the  various  exclusions  were  exceptions.  .  .  .  [But]  the  main 
propositions  which  I  have  stated  should,  in  the  order  of  thought,  be 
first  laid  down  and  always  kept  in  mind." 


No.  10.  INTRODUCTORY.  15 


IRISH  SOCIETY  v.  DERRY   (1846). 

12  CI.  &  F.  641,  6ys. 

Lord  Brougham  :  "The  main  error  which  ran  through  the  argument 
of  the  very  learned  and  ingenious  counsel  .  .  .  was  that  they  seemed 
to  confound  the  purpose  for  which  evidence  was  tendered  and 
admitted,  with  the  admissibility  of  that  evidence.  The  evidence 
tendered  to  prove  any  point  may  be  perfectly  inadequate  to  prove  that 
point.  It  may  be  such  that  if  the  learned  judge  put  it  to  the  jury  as 
sufficient  proof,  his  directions  to  them  upon  that  point  might  well  be  a 
subject  of  exception.  Yet  the  same  evidence  might  be  perfectly  well 
admitted  and  received,  for  such  purposes  to  which  it  was  strictly  and 
correctly  applicable.  .  .  .  Suppose  that  in  a  cause  at  Nisi  Prius,  the 
defendant  produces  a  letter  under  my  hand;  that  letter  is  received  in 
evidence,  though  it  may  be  very  true  it  does  not  prove  the  fact  for 
which  purpose  the  defendant  put  it  in.  If  the  judge  refuses  to  receive 
it,  his  direction  is  liable  to  be  excepted  against  for  that  refusal.  If  he 
receives  and  states  erroneously  to  the  jury  that  it  proves  the  point 
which  it  does  not,  his  direction  is  liable  to  be  excepted  against  upon 
another  ground.  But  still  it  may  be  properly  receivable  in  evidence, 
though  it  does  not  prove  the  matter,  to  prove  which  it  was  offered  in 
evidence." 


PEOPLE  V.  DOYLE  (1870). 

21  Mich.  221,  227. 

"Whenever  a  question  is  made  upon  the  admission  of  evidence,  it  is 
indispensable  to  consider  the  object  for  which  it  is  produced,  and  the 
point  intended  to  be  established  by  it.  .  .  .  It  frequently  happens 
■'"  that  an  item  of  proof  is  plainly  relevant  and  proper  for  one 
purpose,  while  wholly  inadmissible  for  another  which  it  would  naturally 
tend  to  establish.  And  when  this  occurs,  the  evidence  when  offered  for 
the  legal  purpose  can  no  more  be  excluded  on  the  ground  of  its  apti- 
tude to  show  the  unauthorized  fact  than  its  admission  to  prove  such 
unauthorized  fact  can  be  justified  on  the  ground  of  its  aptness  to  prove 
another  fact  legally  provable  under  the  issue."^ 

I — Compare  the  following:  pellant  to  offer  it  as  evidence  for  any  other 

Goodhand  v.  Benton,  6  G.  &  J.  481,  488  purpose    for    which    it    was    legally    compc- 

(1834);   Dorsey,   J.:    "For   the   purpose   for  tent.      Had    the    defendant    offered    the    ac- 

which  the  account  was  offered  in  evidence,  count  generally,  without  specifying  his   ob- 

\ve  think  it  clearly  inadmissible  and  approve  ject,    or   had    stated   it   to   be    to   contradict 

of  its  rejection  by  the  County   Court.  ...  or    discredit    the    testimony   of   the    witness 

In    the    Court's    rejection    of    the    account,  given    on    his    examination    in    chief,  .  .  . 

they   do  not   declare  it   admissible  evidence  there   could   not    have   been    a    doubt   as   to 

for  no  purpose;   but  simply  that  it  was  in-  its   legal   admissibility." 

admissible    for    the    purpose    for    which    it  Compare   the   authorities   cited    in    W.,    i 

was  offered.      It  was  still   open   to  the  ap-  13. 


16  ADMISSIBILITY.  No.  11. 

CHICAGO  CITY  R.  CO.  v.  CARROLL  (1903). 

206  III.  318,  68  N.  E.  1087. 

The  plaintiff  having  been  allowed,  after  the  close  of  both  cases,  to 
offer  evidence  of  the  defendant's  ownership  of  the  car  on  which  the 
injury  occurred,  and  the  defendant  then  desiring  to  offer,  for  the 
first  time,  evidence  of  the  due  inspection  of  the  cars,  the  defend- 
ant's attorney  said :  "We  desire  to  offer  evidence  on  the  question  of 
inspection,"  and  the  Court  replied:  "I  will  not  receive  any  evidence, 
except  as  to  the  ownership  of  this  line,  at  this  stage";  this  was  held 
not  a  sufficient  offer.  Ricks,  J. :  "No  witness  was  put  upon  the  stand. 
No  question  was  asked.  Nothing  was  done,  except  a  mere  conversa- 
tion or  talk  had  between  counsel  for  appellant  and  the  Court.  Such 
procedure  as  that  does  not  amount  to  an  offer  of  evidence,  and  the 
remarks  of  the  Court  did  not  amount  to  a  refusal  to  admit  evidence. 
There  can  be  no  refusal  to  admit  that  which  has  not  been  offered;  and  ' 
counsel  cannot,  by  engaging  in  a  mere  conversation  with  the  Court, 
although  it  may  relate  to  the  procedure,  by  merely  stating  what  he 
desires  to  do,  get  a  ruling  from,  the  Court  upon  which  he  can  predicate 
error.  If  appellant  desired  to  make  the  contention  it  now  makes,  it 
should  have  at  least  put  a  witness  upon  the  stand,  and  proceeded  far 
enough  till  the  question  relative  to  the  point  it  is  now  said  it  was  de- 
sired to  offer  evidence  upon  was  reached,  and  then  put  the  question,  and 
allowed  the  Court  to  rule  upon  it,  and  then  offered  what  was  expected 
to  be  proved  by  the  witness,  if  he  was  not  allowed  to  answer  the  ques- 
tion asked."^ 
\  

RUSH  v.  FRENCH  (1874). 

I  Ariz,  pp,  123,  25  Pac.  816. 

Dunne,  C.  J.:  "A  party  wishing  the  benefit  of  the  remedy  must,  at 
the  time  he  complains,  show  how  he  is  hurt ;  in  the  language  of  the  old 

authorities,  he  must  lay  his  finger  upon  the  point  of  objection. 

...  He  will  not  merely  complain  in  a  general  way,  and  say  that 
to  let  certain  evidence  in  will  hurt  his  case,  and  that  under  the  law  it 
ought  to  be  excluded,  and  leave  the  judge  and  opposite  side  in  the  dark 
as  to  Avhat  principle  of  law  he  relies  on,  and  compel  them  to  decide 
haphazard,  or  else  stop  the  trial  of  the  cause,  with  a  jury  waiting,  while 
the  counsel  examine  the  whole  body  of  the  law,  from  the  earliest  judi- 
cial expositions  down  to  the  latest  act  of  the  legislature,  to  see  if  they 
can  discover  any  valid  objection  to  the  testimony.  The  opposing  coun- 
sel can  make  no  reply  to  a  general  objection,  except  to  throw  the  whole 
responsibility  upon  the  judge  at  once,  or  else  begin  systematically  and 
argue  that  under  any  possible  objection  the  testimony  should  come  in. 

2 — Compare    the   authorities   cited    in    W.,     §    17, 


No.  13.  INTRODUCTORY.  17 

Many  trials  under  such  a  system  would  practically  never  end.  The 
effect  of  it  would  be  to  compel  one  party  to  fight  in  the  dark,  not  know- 
ing when  his  opponent  intended  to  strike,  while  the  other  would  be  free 
to  choose  his  weapons,  and  the  time  and  place  to  use  them.  Such  things 
may  do  in  love  or  war,  when  all  things  are  said  to  be  fair;  but  life  is 
too  short  to  transact  business  on  such  a  system  in  courts  of  justice. 
.  .  .  An  objection  that  the  testimony  is  'irrelevant'  without  specifying 
wherein  or  how  or  why  it  is  irrelevant  will  not  be  considered  in  the 
Supreme  Court  as  raising  any  issue,  if  the  testimony  could,  under  any 
possible  circumstances,  have  been  relevant.  An  objection  that  the  testi- 
mony is  'inadmissible'  may  be  disregarded;  it  amounts  to  no  more  than 
the  assertion  that  the  evidence  is  illegal;  the  objection  should  fully  and 
specifically  point  out  how  it  is  inadmissible.  When  an  objection  is  that 
the  evidence  offered  is  'incompetent  and  illegal,'  it  is  the  duty  of  the 
court  to  overrule  it  if  the  evidence  was  admissible  for  any  purpose.  An 
objection  that  evidence  is  'incompetent'  does  not  raise  any  issue  as  to 
whether  the  question  is  leading  or  not.  The  only  way  to  raise  such  an 
issue  is  to  object  specifically  that  the  question  is  leading.  .  .  .  The  object 
of  requiring  the  grounds  of  objection  to  be  stated,  which  may  seem  to 
be  a  technicality,  is  really  to  avoid  technicalities  and  prevent  delay  in 
the  administration  of  justice.  When  evidence  is  offered  to  which  there 
is  some  objection,  substantial  justice  requires  that  the  objection  be 
specified,  so  that  the  party  offering  the  evidence  can  remove  it,  if  pos- 
sible, and  let  the  case  be  tried  on  its  merits.  If  it  is  objected  that  the 
question  is  leading,  the  form  may  be  changed ;  if  that  the  evidence  is 
irrelevant,  the  relevancy  may  be  shown;  if  that  is  incompetent,  the 
incompetency  may  be  removed ;  if  that  is  immaterial,  its  materiality  may 
be  established ;  if  to  the  order  of  introduction,  it  may  be  withdrawn  and 
offered  at  another  time — and  thus  appeals  could  often  be  saved,  delays 
avoided,  and  substantial  justice  administered." 


WOLVERTON  v.  COMMONWEALTH  (1821). 
7  S.  &  R.  273,  276. 
Scire  facias  on  a  sheriff's  recognizance;  the  breach  being  that  the 
defendant  had  suffered  the  escape  of  one  Forbes,  a  debtor  held  under 
an  execution.     Gibson,  J. :  "The  plaintiffs  further  offered  parol 
evidence  of  the  contents  of  the  execution,  on  which  Forbes  (for 
whose  escape  the  suit  was  brought)   was  committed;  having  first  given 
notice  to  the  defendants  to  produce  the  said  execution;  the  admission  of 
which  testimony  was  then  and  there  objected  to  by  the  counsel  of  the 
defendants,  on  the  ground  that  a  record  could  not  be  proved  by  parol 
evidence.     The  objection  in  this  court  is,  that  parol  evidence  was  inad- 
missible, before  the  execution  was  shown  to  have  come  to  the  defend- 
ants' possession,  or  to  be  lost  or  destroyed;  and  I,  at  once,  admit,  that  if 
it  had  been  put  on  that  ground  at  the  trial,  it  ought  to  have  prevailed ; 
but  I  apprehend  there  has  been  a  total  change  of  position,  since  the 


18  ADMISSIBILITY.  No.  13. 

cause  came  here.  Now  I  take  it  to  be  an  inflexible  rule,  and  one  of 
the  utmost  value,  both  in  pleading  and  evidence,  that  whatever  is  not 
denied  or  made  special  ground  of  objection  is  conceded.  Thus,  if  a 
party  being  called  on  for  that  purpose  opens  the  particular  view  with 
which  he  offers  any  part  of  his  evidence,  or  states  the  object  to  be 
attained  by  it,  he  precludes  himself  from  insisting  on  its  operation  in 
any  other  direction,  or  for  any  other  object;  and  the  reason  is,  that  the 
opposite  party  is  prevented  from  objecting  to  its  competency  in  any  view 
different  from  the  one  proposed.  In  like  manner,  a  party  may  be  called 
on  to  state  the  particular  ground  on  which  he  rests  an  objection  to 
competency,  and  if  it  fails  him,  it  is  not  error  to  receive  the  evidence, 
although  it  be  incompetent  on  other  grounds.  Where,  therefore,  there 
is  a  special  objection,  or,  what  is  the  same  in  effect,  a  general  objection 
resting,  not  on  collateral  circumstances,  but  on  the  supposed  existence 
of  an  abstract  principle  admitting  of  no  exception,  as  was  the  case  here^ 
every  ground  of  exception  which  is  not  particularly  occupied,  is  to  be 
considered  as  abandoned.  For  instance,  a  deposition  is  offered,  and  it 
is  resisted  exclusively  on  the  ground,  that  the  witness  is  interested,  or 
that  the  evidence  is  irrelevant;  would  it  not  be  palpably  unjust  in  a 
court  of  error,  to  listen  to  an  objection,  that  it  did  not  appear  there  had 
been  proof  of  notice,  or  that  the  deposition  had  in  all  respects  been 
regularly  taken?  If  the  defect  were  pointed  out  in  time,  it  might  be 
supplied  by  further  proof;  or  if  that  were  impossible,  the  party  would, 
at  least,  be  apprised  of  the  danger  to  ultimate  success,  which  is  nec- 
essarily incurred  by  pressing  the  admission  of  incompetent  testimony. 
Here,  if  instead  of  urging  the  abstract  operation  of  the  rule,  the  defend- 
ants had  objected  that  the  case  did  not  fall  within  the  particular  excep- 
tion to  it,  now  relied  on,  the  plaintiffs  might  have  been  prepared  to  show 
that  the  execution  actually  came  to  the  hands  of  the  sheriff,  or  that  it 
was  lost  or  destroyed ;  but,  as  to  that,  the  silence  of  their  antagonists  at 
the  trial,  had  a  direct  tendency  to  lead  them  into  a  surprise."^ 


WRIGHT  v.   SHARP   (1709). 

/  Salk.  288. 

"A  corporation-book  was  offered  in  evidence  at  the  assizes  to  prove 
a  member  of  the  corporation  not  in  possession,  and  refused.  No  bill 
of  exceptions  was  then  tendered,  nor  were  the  exceptions  reduced 
^  to  writing;  so  the  trial  proceeded,  and  a  verdict  was  given  for 
the  plaintiff.  Next  term  the  Court  was  moved  for  a  bill  of  exceptions, 
and  it  was  stirred  and  debated  in  Court.  It  was  urged,  that  the  law 
requires  qxiod  proponat  exceptioncm  siiam,  and  no  time  is  appointed  for 
the  reducing  it  into  writing,  and  the  party  is  not  grieved  till  a  verdict 
be  given  against  him;  and  the  same  memory  that  serves  the  judges  for 
a  new  trial  will  serve  for  bills  of  exceptions.     On  the  other  side  it  was 

3 — Compare  the  authorities  cited  in   W.,    §  i8. 


No,  15.  INTRODUCTORY.  19 

said,  that  this  practice  would  prove  a  great  difficulty  to  judges,  and 
delay  of  justice;  that  the  precedents  and  entries  suppose  the  exception 
to  be  written  down  upon  its  being  disallowed,  and  the  statute  ought  to 
be  construed  so  as  to  prevent  inconvenience ;  besides  the  words  of  the 
act  are  in  the  present  tense,  and  so  is  the  writ  formed  on  the  act. 
Holt,  C.  J.:  'If  this  practice  should  prevail,  the  judge  would  be  in  a 
strange  condition :  He  forgets  the  exception,  and  refuses  to  sign  the  bill, 
so  an  action  must  be  brought:  You  should  have  insisted  on  your  excep- 
tion at  the  trial :  You  waive  it  if  you  acquiesce,  and  shall  not  resort 
back  to  your  exception  after  a  verdict  against  you,  when  perhaps,  if  you 
had  stood  upon  your  exception,  the  party  had  other  evidence,  and  need 
not  have  put  the  cause  on  this  point.  The  statute  indeed  appoints  no 
time,  but  the  nature  and  reason  of  the  thing  requires  the  exception 
should  be  reduced  to  writing  when  taken  and  disallowed,  like  a  special 
verdict,  or  a  demurrer  to  evidence ;  not  that  they  need  be  drawn  up  in 
form ;  but  the  substance  must  be  reduced  to  writing  while  the  thing  is 
transacting,  because  it  is  to  become  a  record.'  " 


RUSH  V.  FRENCH  (1874).' 

I  Ariz,  pp,   121,  25  Pac.  816. 

Dunne,  C.  J. :  "The  cases  where  we  are  called  on  to  review  rulings 
on  the  admission  of  evidence  may  be  reduced  to  two  classes:  i.  When 
the  party  objecting  was  overruled  and  he  appeals.  2.  When  the 
*^  party  objecting  was  sustained  and  the  other  side  appeals.  In  the 
first  case,  where  the  party  objecting  was  overruled  and  he  appeals,  he 
must  show  by  the  record :  ( i )  What  the  question  was,  and  what  answer 
was  given  to  it,  or  what  the  evidence  was  which  was  introduced  against 
his  objection.  This  is  important  because  the  evidence  admitted  may  not 
injure  him.  The  answer  may  have  been  in  his  favor.  It  is  not  nec- 
essary that  he  should  show  clearly  that  he  was  injured,  because  that 
would  often  be  impossible,  but  he  must  show  that  the  evidence  was 
admitted  against  his  valid  objection,  which,  it  may  be,  has  injured  him; 
for  the  object  of  granting  a  review  by  this  Court  is  not  to  determine 
the  abstract  questions  as  to  whether  the  judge  below  ruled  correctly  or 
not,  but  to  give  relief  in  case  a  party  may  have  been  injured  by  an 
erroneous  ruling.  (2)  He  must  set  out  enough  of  the  evidence  to  illus- 
trate the  point  of  his  objection,  and  to  raise  the  presumption  that  he 
may  have  been  injured;  but  where  error  is  shown,  injury  will  be  pre- 
sumed, unless  the  contrary  clearly  appears.  (3)  He  must  show  what 
kind  of  an  objection  was  made,  and  to  avail  him  here  he  must  show  that 
the  objection  as  made  was  good.  Then  it  is  for  the  other  party  to  see 
that  the  statement  made  contains  a  showing  sufficient  to  sustain  the 
admission  of  the  evidence  as  against  the  objection  made.  The  amount 
of  showing  the  latter  party  depends  upon  the  nature  of  the  objection. 
If  the  party  objecting  interpose  merely  a  general  objection,  all  that  is 
necessary  is  to  show  enough  to  obviate  the  general  objection.     If  the 


20  ADMISSIBILITY.  No.  15, 

objection  is  specific,  all  that  is  necessary  is  to  show  enough  to  obviate 
the  specific  objection  as  made.  Beyond  this,  we  cannot  in  reason  require 
him  to  go.  He  should  defend  himself  against  the  particular  attack 
made,  but  we  cannot  ask  him  to  fortify  himself  against  all  possible 
attacks  which  might  have  been  made.  2.  In  the  second  case,  where  the 
party  objecting  was  sustained,  and  the  other  side  appeals  and  asks  to 
have  the  ruling  declared  erroneous,  the  party  appealing  must  see  that 
the  record  shows :  ( i )  What  question  he  asked  or  what  evidence  he 
sought  to  introduce;  (2)  Sufficient  of  the  other  evidence  to  illustrate 
the  admissibility  of  that  offered;  (3)  That  the  evidence  so  offered  was 
excluded ;  (4)  That  there  is  reasonable  ground  to  presume  that  he  may 
have  been  injured  by  such  exclusion.  The  other  party  must  see  that 
the  record  shows  good  grounds  of  exclusion."* 

4— Compare  the  authorities  cited  in  W.,    §  20, 


No.  17.  BOOK   I :  ADMISSIBILITY.  21 


PART   I. 

RELEVANCY. 


INTRODUCTORY. 

Thomas  Starkie,  Evidence,  I,  jj  {1824):  "Where  knowledge  can- 
not be  acquired  by  means  of  actual  and  personal  observation,  there  are 
but  two  modes  by  which  the  existence  of  a  bygone  fact  can  be 
ascertained:  ist,  By  information  derived  either  immediately  or 
mediately  from  those  who  had  actual  knowledge  of  the  fact;  or,  2dly, 
by  means  of  inferences  or  conclusions  drawn  from  other  facts  connected 
with  the  principal  fact  which  can  be  sufficiently  established.  In  the  first 
case,  the  inference  is  founded  on  a  principle  of  faith  in  human  veracity 
sanctioned  by  experience.  In  the  second,  the  conclusion  is  one  derived 
by  the  aids  of  experience  and  reason  from  the  connection  between  the 
facts  which  are  known  and  that  which  is  unknown.  In  each  case  the 
inference  is  made  by  virtue  of  previous  experience  of  the  connection 
between  the  known  and  the  disputed  facts,  although  the  grounds  of  such 
inference  in  the  two  cases  materially  differ." 


COMMONWEALTH  v.  WEBSTER  (1850). 

5  Cush.  2g^,  2g6,  2pp,  ^10. 

The  defendant,  professor  of  chemistry,  in  the  medical  college,  in 
Boston,  attached  to  the  university  at  Cambridge,  was  indicted  in  the 
municipal  court  at  the  January  term,  1850,  for  the  murder  of  Dr. 
^*  George  Parkman,  at  Boston,  on  the  23d  of  November,  1849. 
The  government  introduced  evidence,  that  Dr.  George  Parkman,  quite 
peculiar  in  person  and  manners,  and  very  well  known  to  most  persons 
in  the  city  of  Boston,  left  his  home  in  Walnut  street  in  Boston  in  the 
forenoon  of  the  23d  of  November,  1849,  i"  good  health  and  spirits ;  and 
that  he  was  traced  through  various  streets  of  the  city  until  about  a 
quarter  before  two  o'clock  of  that  day,  when  he  was  seen  going  towards 
and  about  to  enter  the  medical  college :  That  he  did  not  return  to  his 
home:  That  on  the  next  day  a  very  active,  particular  and  extended 
search  was  commenced  in  Boston  and  the  neighboring  towns  and  cities, 
and  continued  until  the  30th  of  November ;  and  that  large  rewards  were 


22  RELEVANCY.  No.  17. 

offered  for  information  about  Dr.  Parkman:  That  on  the  30th  and  31st 
of  November,  certain  parts  of  a  human  body  were  discovered,  in  and 
about  the  defendant's  laboratory  in  the  medical  college;  and  a  great 
number  of  fragments  of  human  bones  and  certain  blocks  of  mineral 
teeth,  imbedded  in  slag  and  cinders,  together  with  small  quantities  of 
gold,  which  had  been  melted,  were  found  in  an  assay  furnace  of  the 
laboratory;  That  in  consequence  of  some  of  these  discoveries  the  de- 
fendant was  arrested  on  the  evening  of  the  30th  of  November;  That 
the  parts  of  a  human  body  so  found  resembled  in  every  respect  the  cor- 
responding portions  of  the  body  of  Dr.  Parkman,  and  that  among  them 
all  there  were  no  duplicate  parts;  and  that  they  were  not  the  remains 
of  a  body  which  has  been  dissected;  That  the  artificial  teeth  found  in 
the  furnace  were  made  for  Dr.  Parkman  by  a  dentist  in  Boston  in 
1846,  and  refitted  to  his  mouth  by  the  same  dentist  a  fortnight  before 
his  disappearance;  That  the  defendant  was  indebted  to  Dr.  Parkman 
on  certain  notes,  and  was  pressed  by  him  for  payment ;  that  the  defend- 
ant had  said  that  on  the  23d  of  November,  about  nine  o'clock  in  the 
morning,  he  left  word  at  Dr.  Parkman's  house,  that  if  he  would  come  to 
the  medical  college  at  half  past  one  o'clock  on  that  day,  he  would  pay 
him;  and  that,  as  he  said,  he  accordingly  had  an  interview  with  Dr. 
Parkman  at  half  past  one  o'clock  on  that  day,  at  his  laboratory  in  the 
medical  college ;  That  the  defendant  then  had  no  means  of  paying,  and 
that  the  notes  were  afterwards  found  in  his  possession.  Several  wit- 
nesses, called  for  the  defence,  testified  that  they  saw  Dr.  Parkman  at 
various  places  in  Boston,  at  different  times  between  the  hours  of  a 
quarter  before  two  and  five,  in  the  afternoon  of  the  23d  of  November. 
The  attorney-general,  in  rebutting  the  evidence  for  the  defendant,  pro- 
posed to  call  witnesses  to  show  that  there  was  a  person  about  the  streets 
of  Boston,  at  the  time  of  Dr.  Parkman's  disappearance,  who  bore  a 
strong  resemblance  to  him,  in  form,  gait,  and  manner;  so  strong  that 
he  was  approached  and  spoken  to,  as  Dr.  Parkman,  by  persons  well 
acquainted  with  the  latter.     The  Court  excluded  the  evidence. 

Shaw,  C.  J.:  "The  prisoner  at  the  bar  is  charged  with  the  wilful 
murder  of  Dr.  George  Parkman.  This  charge  divides  itself  into  two 
principal  questions,  to  be  resolved  by  the  proof:  first,  whether  the  party 
alleged  to  have  been  murdered  came  to  his  death  by  an  act  of  violence 
inflicted  by  any  person;  and  if  so,  secondly,  whether  the  act  was  com- 
mitted by  the  accused.  Under  the  first  head  we  are  to  inquire  and 
ascertain,  whether  the  party  alleged  to  have  been  slain  is  actually  dead ; 
and,  if  so,  whether  the  evidence  is  such  as  to  exclude,  beyond  reason- 
able doubt,  the  supposition  that  such  death  was  occasioned  by  accident 
or  suicide,  and  to  show  that  it  must  have  been  the  result  of  an  act  of 
violence.  When  the  dead  body  of  a  person  is  found,  whose  life  seems 
to  have  been  destroyed  by  violence,  three  questions  naturally  arise. 
Did  he  destroy  his  own  life?  Was  his  death  caused  by  accident?  Or 
■was  it  caused  bv  violence  inflicted  on  him  by  others?     In  most  in- 


No.  17.  INTRODUCTORY.  23 

stances,  there  are  facts  and  circumstances  surrounding  the  case,  which, 
taken  in  connection  with  the  age,  character,  and  relations  of  the  de- 
ceased, will  put  this  beyond  doubt.  This  case  is  to  be  proved,  if  proved 
at  all,  by  circumstantial  evidence;  because  it  is  not  suggested  that  any 
direct  evidence  can  be  given,  or  that  any  witness  can  be  called  to  give 
direct  testimony,  upon  the  main  fact  of  the  killing.  Each  of  these 
modes  of  proof  has  its  advantages  and  disadvantages ;  it  is  not  easy 
to  compare  their  relative  value.  The  advantage  of  positive  evidence 
is,  that  it  is  the  direct  testimony  of  a  witness  to  the  fact  to  be 
proved,  who,  if  he  speaks  the  truth,  saw  it  done;  and  the  only 
question  is,  whether  he  is  entitled  to  belief.  The  disadvantage  is, 
that  the  witness  may  be  false  and  corrupt,  and  that  the  case  may 
not  afford  the  means  of  detecting  his  falsehood.  But,  in  a  case 
of  circumstantial  evidence  where  no  witness  can  testify  directly  to 
the  fact  to  be  proved,  it  is  arrived  at  by  a  series  of  other  facts,  which 
by  experience  have  been  found  so  associated  with  the  fact  in  question, 
that  in  the  relation  of  cause  and  effect,  they  lead  to  a  satisfactory  and 
certain  conclusion ;  as  when  footprints  are  discovered  after  a  recent 
snow,  it  is  certain  that  some  animated  being  has  passed  over  the  snow 
since  it  fell ;  and,  from  the  form  and  number  of  the  footprints,  it  can 
be  determined  with  equal  certainty,  whether  they  are  those  of  a  man, 
a  bird,  or  a  quadruped.  Circumstantial  evidence,  therefore,  is  founded 
on  experience  and  observed  facts  and  coincidences,  establishing  a  con- 
nection between  the  known  and  proved  facts  and  the  fact  sought  to 
be  proved.  The  advantages  are,  that,  as  the  evidence  commonly  comes 
from  several  witnesses  and  different  sources,  a  chain  of  circumstances 
is  less  likely  to  be  falsely  prepared  and  arranged,  and  falsehood  and 
perjury  are  more  likely  to  be  detected  and  fail  of  their  purpose.  The 
disadvantages  are,  that  a  jury  has  not  only  to  weigh  the  evidence  of 
facts,  but  to  draw  just  conclusions  from  them;  in  doing  which,  they 
may  be  led  by  prejudice  or  partiality,  or  by  want  of  due  deliberation  and 
sobriety  of  judgment,  to  make  hasty  and  false  deductions ;  a  source  of 
error  not  existing  in  the  consideration  of  positive  evidence." 


24  BOOK    i:    ADMISSIBILITY,      PART    I:    RELEVANCY.         No.  18. 


TITLE  I. 
CIRCUMSTANTIAL  EVIDENCE. 

Professor  Alfred  Sidgwick,  Fallacies:  a  View  of  Logic  from  the 
Practical  Side,  pp.  2jo,  jjp  {1884)  :  "There  is  at  bottom  one  primary 
source  of  fallacy  in  the  inductive  argument,  call  it  by  whatever 
^^  name  may  be  most  convenient.  We  may  name  it,  for  instance, 
the  clanger  of  overlooking  plurality  of  causes,  or  of  neglecting  possible 
chance  or  counteraction,  or  the  possibility  of  unknown  antecedents,  or 
of  arguing  either  post  hoc  ergo  propter  hoc  or  per  enumerationem  sini- 
plicem,  or  of  neglecting  to  exclude  alternative  possibilities,  or  of  for- 
getting that  facts  may  bear  more  than  one  interpretation,  or  of  stating 
the  law  too  widely,  or  of  failing  to  see  below  the  surface,  or — perhaps 
on  the  whole  the  best  of  all — of  unduly  neglecting  points  of  difference. 
.  .  .  [The  form  of  argument  is]  a  case  or  cases  brought  forward  of 
which  such  law  is  asserted  to  be  the  best  explanation.  If,  then,  some 
better  explanation  is  possible,  the  theory  as  stated  is  impeachable.  .  .  . 
By  the  best  explanation  is  meant  .  .  .  that  solitary  one  out  of  all  pos- 
sible hypotheses  which,  Avhile  explaining  all  the  facts  already  in  view, 
is  narrowed,  limited,  hedged,  or  qualified,  sufficiently  to  guard  in  the 
best  possible  way  against  undiscovered  exceptions.  .  .  .  Hence,  the  'best' 
explanation  of  the  facts  A  and  B  and  C  is  that  explanation  which, 
while  neglecting  certain  points  of  difference  among  them,  and  thus  form- 
ing some  generalization,  neglects  only  those  differences  which  are  'un- 
essential.' The  best  explanation  of  {i.  e.  generalization  from)  one  soli- 
tary sequence  observed  is  that  which  neglects  only  its  unessential  ele- 
ments or  features.  ...  It  is  in  every  case,  then,  through  undue  neglect 
of  the  essential  difference  between  the  specific  case  or  cases  observed  and 
the  wider  genus  to  which  the  assertion  professes  to  refer,  that  we  rise 
to  a  generalization  not  sufficiently  guarded  against  possible  exceptions. 
.  .  .  All  positive  proof  depends  ...  on  the  care,  the  precautions  with 
which  observation  has  been  interpreted  and  experiment  conducted.  So 
far  only  as  these  exclude  alternative  possibilities  are  they  of  real  value. 
.  .  .  Because  all  positive  assertion  can  only  justify  itself  .  .  .  when 
mistakes  have  been  either  one  by  one  eliminated  or  in  a  body  pre- 
vented, the  burden  of  doubt  to  be  removed  by  evidence  consists  essen- 
tially in  the  group  of  alternative  theories  remaining  undiscarded.  ,  .  . 
The  important  point  is,  always,  to  show  that  all  other  possible  theories 
are  weighed  in  the  balance  and  found  wanting, —  that  is  to  say,  that  all 


No.  19.  INTRODUCTORY.  25 

precautions  have  been  taken  against  that  crudest  kind  of  unchecked  gen- 
eralization which  the  least  trained  mind  possesses  in  the  greatest  abund- 
ance. This  objection  against  a  theory,  that  alternative  theories  are  not 
yet  discarded,  appears,  however,  more  directly  applicable,  more  fruitful 
of  results,  against  a  concrete  or  an  abstract-concrete  thesis  than  against 
a  directly  abstract  one.  .  .  .  And  the  right  of  the  theory  chosen,  over 
all  its  possible  rivals,  depends  entirely  upon  the  depth  of  our  insight  into 
the  conditions  under  which  the  experiment  or  observation  was  really 
made.  This  is  the  main  lesson  of  Logic  as  regards  Induction.  .  .  ? 
These  alternatives  have  to  be  faced  as  possible  explanations  of  each 
observed  case ;  and  the  immediate  question  in  each  case  is,  What  cer- 
tainty can  we  obtain  that  the  alternative  chosen  is  the  right  one  out  of 
all  those  conceivable  ?  The  methods  of  Inductive  Proof  may  be  viewed 
as  attempts  to  answer  this  question." 


COHN  v.  SAIDEL  (1902). 

71  N.  H.  558,  5s  Atl.  800. 

Malicious  prosecution ;  an  instruction  that  the  mere  fact  of  the  pres- 
ent defendants'  submission  to  nonsuit  in  the  former  action  warranted 
a  conclusion  that  they  had  no  probable  cause  in  the  beginning 
was  held  to  have  been  properly  refused.  Walker,  J. :  "The 
argument  is  that  that  fact  alone  warrants  the  inference  of  ^  want  of 
probable  cause.  But  the  fact  of  the  nonsuit  alone  is  direct  evidence 
of  no  mental  state  on  the  part  of  the  defendants,  except  that  they  did  not 
desire  to  carry  on  the  litigation  at  that  time.  It  may  be  said  that  it 
establishes  that  fact  conclusively.  If  it  does,  and  if  it  might  be  inferred 
that  they  became  nonsuit  because,  as  then  informed,  they  did  not  think 
they  had  a  probable  cause  of  action,  it  is  necessary  to  go  a  step  further 
in  this  mental  operation,  and  to  infer  from  this  inference  that  the  de- 
fendants, when  they  brought  the  suits,  nearly  a  year  before,  upon  in- 
formation they  then  possessed,  did  not,  as  reasonable  and  prudent  men, 
honestly  believe  they  had  a  cause  of  action.  There  is  no  open  and 
visible  connection  between  the  fact  first  proved,  viz.,  that  the  defendants 
desired  to  withdraw  their  suits  in  April,  1900,  and  the  fact  to  be 
proved,  viz.,  that  they  had  no  probable  cause  of  action  in  July,  1899. 
A  great  variety  of  reasons  exist  which  may  induce  a  plaintiff  to  become 
nonsuit,  one  of  which  may  be  that  he  has  discovered  or  become  con- 
vinced that  he  has  no  case.  This,  however,  is  but  a  mere  conjecture. 
It  is  but  one  of  a  large  number  of  sufficient  reasons  for  such  action. 
It  cannot  even  be  said  to  be  the  common  or  ordinary  reason  that 
induces  a  plaintiff  to  become  nonsuit.  In  a  particular  case  it  may  or 
it  may  not  be  the  true  reason.  Unconnected  with  other  evidence,  it  is 
pure  conjecture.  But  one  conjecture  cannot  be  treated  as  a  proved 
fact  in  order  to  reach  another  conjecture.  In  view  of  the  fact  that  the 
reasons   for  becoming   nonsuit   are   numerous,   and   that  the   plaintiff's 


26  CIRCUMSTANTIAL    EVIDENCE.  No.  20. 

belief  that  he  had  no  cause  of  action  in  the  beginning  is  probably  a 
very  rare  one,  the  above  rule  would  not  seem  to  be  reasonable,  unless 
it  is  reasonable  to  require  the  defendant  to  prove  his  nonliability  in  the 
first  instance.  The  logic  of  legal  procedure  does  not  lead  to  such  a 
result."^ 


AMOSKEAG  MANUFACTURING  CO.  v.  HEAD   (1879). 

5P  N.  H.  332. 

Petition  for  damages  to  be  assessed  for  flowing  the  plaintiff's  land 
by  the  building  of  a  dam.  On  the  issue  of  value,  the  defendant  offered 
to  show  the  sums  paid  to  thirty-two  other  parties  for  damage 
done  by  the  same  dam.  This  was  excluded.  Doe^  C.  J. :  "The 
evidence  offered  by  the  defendant,  of  the  sums  paid  by  the  plaintiffs 
to  thirty-two  persons  for  thirty-two  rights  of  flowage,  would  be  inef- 
fective and  immaterial  if  unaccompanied  by  other  evidence  tending  to 
show  the  damage  done  in  those  cases,  and  such  a  state  of  facts  as 
would  enable  the  jury  to  draw  a  fair  inference  as  to  the  value  of  the 
defendant's  land  from  the  value  of  the  other  tracts.  If  such  other 
evidence  were  offered,  one  question  would  be,  whether  the  thirty-two 
other  cases  should  be  opened  for  trial  in  this  case.  The  practice  of 
trying  collateral  issues  has  been  considerably  extended  in  this  State 
during  the  last  forty  years.  .  .  .  But  how  far  a  trial  can  justly  and 
reasonably  go  upon  such  issues  is  often  a  question  of  fact.  The 
trial  to  which  parties  are  entitled  is  not  an  endless  one,  nor  one 
unreasonably  protracted  and  exhausting.  There  may  be  a  vast 
amount  of  evidence,  relevant  in  a  certain  legal  sense,  but  so  unim- 
portant, when  compared  with  an  abundance  of  better  evidence  easily 
available,  as  to  be  properly  excluded.  The  parties  being  allowed, 
upon  collateral  issues,  an  equal  range,  amply  sufficient  for  the  pur- 
poses of  justice,  under  the  circumstances  of  the  particular  case, 
they  are  not  necessarily  entitled,  as  a  matter  of  law,  to  go  further  in 
that  direction.  The  evidence  of  the  sums  paid  for  flowage  in  the  thirty- 
two  other  cases,  if,  as  a  matter  of  law,  it  was  not  incompetent,  might  be 
excluded  on  the  ground  that,  as  a  matter  of  fact,  it  had  so  slight  or 
remote  a  bearing  on  this  case  that  it  would  be  unjust  or  unreasonable 

I — Stone,  J.,  in  Mattison  v.  State,  55  Ala.,  tends   to   shed   light   on   the   main    inquiry, 

224,    232    (1876):      "In    inquiries    of    fact  and  does  not  withdraw  attention  from  such 

dependent    on    circumstantial    evidence    for  main  inquiry  by  obtruding  upon  the  minds 

their   solution,   no   certain   rule   can   be   laid  of   the   jury    matters    which    are   foreign    or 

down   which   will    define   with   unerring   ac-  of  questionable  pertinency,  is  as  a  general 

curacy    what    collateral    facts    and    circum-  rule    admissible    evidence.      On    the    other 

stances  are  sufficiently  proximate  to  justify  hand,   undue  multiplication   of  the  issues  is 

their  admission  in  evidence.     Human  trans-  to  be  steadily   guarded  against,  as   tending 

actions    are    too    varied    to    admit    of    such  to    divert    the    minds    of    jurors    from    the 

clear    declaration    of    the    rule.      Whatever  main   issue." 


No.  21.  CHARACTER,    AS    EVIDENCE.  27 

to  prolong  and  complicate  the  trial  by  such  an  investigation  of  those 
cases  as  would  be  necessary  for  obtaining  from  them  any  useful  infor- 
mation."2 


SUB-TITLE   I: 

EVIDENCE  TO  PROVE  A  HUMAN  ACT. 
Topic  A:     Moral  Character,  as  Evidence. 

T.  McNally,  Evidence,  320  (1802,  Ireland):  "It  has  been  hereto- 
fore held  that  a  prisoner  cannot  examine  to  character,  except  in 
favorem  vitce,  w^hen  charged  on  a  capital  indictment;  but  the 
^^  rule  is  now^  w^isely  extended  to  all  cases  of  misdemeanors.  And 
this  appears  to  have  been  the  ancient  practice.  In  R.  v.  Brown,  1798, 
.  .  .  the  point  appears  finally  settled.  .  .  .  Lord  Carlton,  C.  J.  C.  P., 
said  he  had  conversed  with  many  of  the  judges  on  the  subject  now 
before  the  court,  who  thought,  as  he  did,  that  .  .  .  evidence  of  such  a 
nature  might  be  very  material ;  for  example,  suppose  a  man  of  very 
great  property  was  indicted  for  perjury,  where  the  object  to  be  attained 
by  the  perjury  was  a  mere  trifle,  for  instance  a  shilling;  or  suppose  a 
man  to  be  charged  with  a  riot  or  assault  who  was  known  to  be  of  a 
peaceable  and  quiet  disposition;  evidence  of  character  in  such  cases, 
directly  encountering  the  nature  of  the  charge  in  the  indictment,  must 
be  of  the  last  importance.  .  .  .  Lord  Kilwarden,  C.  J.  K.  B.,  agreed 
with  Lord  Carlton,  and  observed  that  the  reason  generally  assigned  for 
the  admission  of  such  evidence  in  capital  cases  only  was  altogether  un- 
satisfactory to  his  mind.  It  was  said  to  be  'in  favorem  vitce'  but  he 
had  no  conception,  according  to  the  principles  of  sound  sense  and  right 
reason,  that  character  could  be  evidence  in  a  case  affecting  the  life  of 
a  man,  and  yet  not  evidence  in  a  case  affecting  his  freedom,  his  prop- 
erty, and  his  reputation." 


COMMONWEALTH  v.  HARDY  (1807). 

2  Mass.  317. 

Parsons,  C.  J.,  "said  that  he  was  of  opinion  that  a  prisoner  ought 
to  be  permitted  to  give  in  evidence  his  general  character  in  all  [crim- 

2 — Rolfe,    B.,    in      Attorney-General      v.  portance,  it  might  he  possible,  and  perhaps 

Hitchcock,    I    Exch.   91,    105    (1847):     "The  proper,    to    throw    a    light    on    matters     in 

laws  of  evidence  on  this  subject  as  to  what  which    every    possible    question    might     be 

ought  and   what  ought  not  to  be   received,  suggested,    for    the    purpose    of    seeing    by 

must   be   considered   as   founded   on   a   sort  such    means    whether    the    whole    was    un- 

of  comparative  consideration  of  the  time  to  founded,    or    what    portion    of    it    was    not, 

be  occupied  in  examinations  of  this  nature,  and    to    raise   every   possible    inquiry  as   to 

and  the  time  which   it  is  practicable  to  be-  the  truth   of  the   statements   made.      But   I 

stow  upon  them.     If  we  lived   for   a  thou-  do    not    see    how    that    could    be;    in    fact, 

sand   years   instead   of   about   sixty   or  sev-  mankind   find   it  to   be   impossible.      There- 

enty,  and  every  case  were  of  sufficient  im-  fore  some  line  must  be  drawn." 


28  CIRCUMSTANTIAL    EVIDENCE.  No.  22 , 

inal]  cases;  for  he  did  not  see  why  it  should  be  evidence  in  a 
^"^  capital  case  and  not  in  cases  of  an  inferior  degree.  In  doubtful 
cases,  a  good  general  character,  clearly  established,  ought  to  have 
weight  v/ith  a  jury;  but  it  ought  not  to  prevail  against  the  positive  tes- 
timony of  credible  witnesses.  Whenever  the  defendant  chooses  to  call 
witnesses  to  prove  his  general  character  to  be  good,  the  prosecutor  may 
offer  witnesses  to  disprove  their  testimony.  But  it  is  not  competent  for 
the  prosecutor  to  go  into  this  inquiry,  until  the  defendant  has  voluntarily 
put  his  character  in  issue;  and  in  such  case  there  can  be  no  examina- 
tion as  to  particular  facts. "^ 


R.  V.  ROWTON   (1865). 

Leigh  &  C.  520,  540. 

WiLLES,  J.:  "[Character]  is  strictly  relevant  to  the  issue;  but  it  is 
not  admissible  upon  the  part  of  the  prosecution  because,  as  my  brother 
Martin  says,  if  the  prosecution  were  allowed  to  go  into  such  evi- 
dence,  we  should  have  the  whole  life  of  the  prisoner  ripped  up, 
and,  as  has  been  witnessed  elsewhere,  upon  a  trial  for  murder  you  might 
begin  by  showing  that  when  a  boy  at  school  the  prisoner  had  robbed 
an  orchard,  and  so  on  through  the_ whole  of  his  life ;  and  the  result 
would  be  that  the  man  on  his  trial  might  be  overwhelmed  by  preju- 
dice, instead  of  being  convicted  by  that  affirmative  evidence  which  the 
law  of  this  country  requires.  The  evidence  is  relevant  to  the  issue, 
but  is  excluded  for  reasons  of  policy  and  humanity ;  because  although 
by  admitting  it  you  might  arrive  at  justice  in  one  case  out  of  a  hun- 
dred, you  would  probably  do  injustice  to  the  other  ninety-nine."  Mar- 
tin, B. :  "There  would  be  great  danger  that  the  prisoner  would  be 
tried  on  the  evidence  of  character,  instead  of  on  that  bearing  more 
directly  upon  the  offense  charged."' 


TURNER'S   TRIAL    (1817). 

I  S2  How.  St.  Tr.  1007. 

High  treason.  Mr.  Cross  (for  the  defense)  :  "What  has  been  his 
general  character  as  far  as  you  have  known  him?"  Mr.  Gurney  (op- 
posing) :  "I  submit  to  your  lordships  that  the  proper  question 
"*  is  as  to  loyalty."  Mr.  Denman  (for  the  defense)  :  "If  he  is  gen- 
erally a  respectable  man,  an  inference  arises  that  he  is  a  loyal  man." 
Mr.  Gurney:  "If  a  man  is  indicted  for  felony,  evidence  is  produced 
to  his  honesty;  if  for  rape,  to  his  chastity;  and  so  on."  Abbott,  J.: 
"As  far  as  my  experience  goes,  the  inquiry  into  character  is  always 
adapted  to  the  charge."  Mr.  Denman:  "...  A  man  who  had  con- 
ducted himself  peaceably  and  respectably  was  not  likely  to  enter  into 

1 — Compare  the  authorities  cited  in  W.,  2 — Compare  the  authorities  cited  in  W., 

§   S6.  §  57- 


No.  26.  CHARACTER,    AS    EVIDENCE.  29 

wild  schemes."  Abbott,  J.:  "The  question  was  objected  to  as  too  gen- 
eral and  therefore  not  applicable;  it  was  not  whether  he  was  a  peace- 
able man,  but  as  to  his  general  character."^ 


THOMPSON  V.  CHURCH   (1791). 

/  Root  312. 

Qui  tarn  for  an  assault ;  the  defendant's  character  as  a  malicious, 

quarrelsome  man  was  rejected.     Per  Curiam:    "The  general  character 

is  not  in  issue.     The  business  of  the  court  is  to  try  the  case,  and 

^**        not  the  man ;  and  a  very  bad  man  may  have  a  very  righteous 


HEIN  V.  HOLDRIDGE    (1900). 

y8  Minn.  468,  81  N.  W.  522. 

Start,  C.  J. :  "This  is  an  action  by  a  father  for  the  alleged  seduc- 
tion of  his  daughter  by  the  defendant.  .  .  .  Did  the  trial  court  err  in 
excluding -evidence  offered  by  the  defendant  to  show  that  his 
^^  general  reputation  for  chastity  was  good?  .  .  .  The  charge 
against  the  defendant  involved  the  commission  of  a  crime  by  him,  and 
if  this  were  a  criminal  case,  it  is  certain  that  the  excluded  evidence 
would  have  been  admissible.  The  accused  in  a  criminal  case,  whether 
the  charge  be  a  felony  or  misdemeanor,  may  always  prove  his  pre- 
vious good  character,  of  which  his  general  reputation  is  evidence,  as 
tending  to  disprove  the  commission  of  the  offense;  that  is,  as  tending 
to  show  the  improbability  of  a  person  of  his  previous  character  com- 
mitting the  act  charged.  .  .  .  There  would  seem  to  be  no  logical  rea- 
son why  the  same  rule  should  not  apply  to  civil  actions  in  which  the 
defendant  is  charged  with  a  crime.  But  the  accepted  general  rule  is 
that  evidence  of  the  general  character  of  parties  to  civil  actions,  where 
character  is  not  a  part  of  the  issue,  is  inadmissible.___The_jrule 
seems  to  be  one  of  practical  convenience,  for  the  purpose  of  avoiding 
the  .confusion  of  issues.  On  principle,  however,  it  would  seem  that 
there  ought  to  be  exceptions  to  this  general  rule.  .  .  .  Inasmuch  as  the 
general  rule  is  not  based  upon  any  philosophical  reason,  but  is  merely 
one  of  convenience,  it  ought  not  to  be  applied  to  cases  where  justice 
to  the  defendant  requires  that  the  inconvenience  arising  from  a  con- 
fusion of  the  issues  should  be  disregarded,  and  he  be  permitted  to  give 
evidence  of  his  previous  good  character,  or,  in  other  words,  that  such 
evidence  ought  to  be  received  in  a  civil  action  when  it  is  of  a  char- 
acter to  bring  it  within  all  of  the  reasons  for  admitting  such  evidence 
in  criminal  cases.  Civil  actions  for  an  indecent  assault,  for  seduc- 
tion, and  kindred  cases,  are  of  this  character;  for  such  cases  are  not 
infrequently   mere   speculative   and   blackmailing  schemes.     The  conse- 

3 — Compare  the   authorities  cited   in   \V.,   §  59. 


30  CIRCUMSTANTIAL    EVIDENCE.  No.  26.. 

quences  to  the  defendant  of  a  verdict  against  him  in  such  a  case  are 
most  serious,  for  the  issue  as  to  him  involves  his  fortune,  his  honor, 
his  family.  From  the  very  nature  of  the  charge,  it  often  happens  that 
an  innocent  man  can  only  meet  the  issue  by  a  denial  of  the  charge, 
and  proof  of  his  previous  good  character.  Ought  a  defendant  in  such 
a  case  to  be  deprived  of  the  right  to  lay  before  the  jury  evidence  of  his 
previous  good  character,  because  it  will  tend  to  confuse  the  issue,  while 
a  defendant  in  a  case  where  the  State  charges  him  with  a  simple  as- 
sault, involving  no  more  serious  consequences  than  the  payment,  per- 
haps, of  a  fine  of  five  dollars,  is  accorded  the  absolute  right  to  give 
such  evidence?  .  .  .  [But  the  doctrine]  ought  not  to  be  extended  to 
civil  actions  where  the  issue  relates  to  a  simple  assault,  or  to  the  fraud, 
deceit,  or  negligence  of  the  defendant,  or  to  similar  actions,  for  they 
are  not  within  the  reasons  we  have  suggested  for  the  admission  of 
evidence  of  good  character  in  exceptional  civil  actions."^ 


TENNEY  V.  TUTTLE  (1861). 

I  All.   185. 

Tort  for  an  injury  received  from  a  collision  of  carriages  in  the  high- 
way.    At  the  trial  in  the  superior  court  the  plaintiffs  offered  evidence 

tending  to  prove,  that  the  defendant  left  his  horses,  harnessed  to 
27  . 

a  wagon,  standing  on  his  own  land  within  about  fifteen  feet  of  his 

house  and  within  the  enclosure  adjoining  the  same,  without  being  tied, 
or  under  the  charge  of  any  person ;  and  went  into  the  house,  out  of 
sight  of  the  horses,  to  give  directions  to  the  workmen  employed 
therein;  and  that  the  horses  started  and  ran  into  the  road  and  against 
the  wagon  in  which  the  plaintiffs  were  riding,  and  thereby  injured 
the  female  plaintiff.  The  defendant  offered  to  show  his  own  character 
as  a  careful,  prudent  and  cautious  man,  as  bearing  on  the  question  of 
whether  he  used  ordinary  care  on  this  occasion.  To  this  last  the 
plaintiffs  objected.  Metcalf^  J. :  "...  Evidence  of  the  defendant's 
being  a  careful,  prudent  and  cautious  man  was  not  admissible  for  the 
purpose  of  showing  that  he  used,  in  this  instance,  such  care  of  his 
horses  as  the  law  requires  in  order  to  exempt  him  from  responsibility 
for  the  mischief  produced  by  their  escape  into  the  highway.  When  the 
precise  act  or  omission  of  a  defendant  is  proved,  the  question  whether 
it  is  actionable  negligence  is  to  be  decided  by  the  character  of  that 
act  or  omission,  and  not  by  the  character  for  care  and  caution  that  the 
defendant  may  sustain.  If  such  evidence  ...  is  ever  admissible  in  a 
case  like  this,  we  incline  to  the  opinion  that  it  is  only  when  the  plain- 
tiff attempts  to  prove  the  defendant's  negligence  by  merely  circumstan- 
tial evidence,  or,  perhaps,  by  witnesses  shown  to  be  of  doubtful  ver- 
acity."'' 

4 — Compare   the   authorities   cited   in   W.,  5— Compare   the   authorities  cited  in   W., 

S  64.  §    65. 


No.  28.  CHARACTER,    AS    EVIDENCE.  31 

STATE  V.  MANCHESTER  &   LAWRENCE   RAILROAD    (1873). 

52  N.  H.  528,  332,  549. 

Sargent,  C.  J.:  "Some  of  the  general  allegations  in  the  indict- 
ment are,  that,  in  the  town  of  Salem,  there  is  a  certain  public  high- 
way, which  is  properly  described;  that  the  track  of  the  defend- 
"^  ants'  railroad  crosses  said  highway  at  a  place  called  Ballard's 
crossing,  in  said  Salem,  upon  the  grade  or  level  of  said  highway;  that, 
on  December  17,  1870,  the  defendants  were  proprietors  of  said  railroad, 
and  by  their  servants  and  agents  ran  a  locomotive  steam  engine  and 
a  train  of  cars  upon  said  railroad  and  across  said  public  highway; 
that  Benjamin  Woodbury,  of  said  Salem,  not  being  in  the  employment 
of  said  railroad,  was  then  passing  along  said  public  highway,  at  the 
crossing  aforesaid,  when  the  defendants,  with  said  engine  and  train, 
suddenly  surprised,  overtook,  struck,  threw  down,  and  instantly  killed 
the  said  Woodbury.  .  .  .  The  same  rules  of  evidence  and  the  same 
principles  of  law  should  be  applied  in  such  cases  where  the  form  is 
criminal,  as  in  like  cases  where  the  redress  is  sought  by  a  civil  action 
for  damages.  .  .  .  The  first  question  raised  by  the  case  is  as  to  the 
admissibility  of  the  testimony  as  to  the  same  train,  run  by  the  same 
engineer  and  fireman,  having  sometimes  passed  the  same  crossing 
where  the  accident  happened,  during  the  preceding  year,  without  sound- 
ing the  whistle  or  ringing  the  bell,  as  tending  to  show  that  the  same 
men  would  be  more  likely  to  have  neglected  the  performance  of  these 
duties  upon  the  occasion  in  question.  The  regulations  required  that 
upon  each  occasion  when  this  crossing  was  passed  the  bell  should  be 
rung  and  the  whistle  sounded.  There  was  direct  evidence  on  one  side 
that  neither  of  these  signals  was  given  upon  the  occasion  of  the  acci- 
dent, while  there  was  just  as  direct  evidence  upon  the  other  side  that 
both  these  signals  were  properly  given.  Here  was  a  direct  conflict  in 
the  evidence.  Which  shall  the  jury  believe?  ...  It  would  seem  to  be 
axiomatic  that  a  man  is  likely  to  do  or  not  to  do  a  thing,  or  to  do  it  or 
not  to  do  it  in  a  particular  way,  as  he  is  in  the  habit  of  doing  or  not 
doing  it.  But  this  must  be  understood  of  acts  which  are  done  or 
omitted  to  be  done  without  any  particular  intent  or  purpose  to  injure 
any  one;  it  cannot  apply  to  acts  that  are  done  intentionally,  wilfully, 
or  maliciously,  because  such  acts  are  done  with  a  specific  object  in 
view,  and  they  are  performed,  not  by  force  of  habit,  but  with  a  definite 
purpose.  .  .  .  But  when  the  question  is,  did  these  servants  of  the  road, 
without  any  intention  whatever  and  through  mere  negligence  or  care- 
lessness, omit  to  give  these  signals  on  that  occasion,  we  tliink  the  in- 
quiry was  properly  made  as  to  what  they  had  done  before  in  that 
regard,  and  whether  they  had  or  had  not  grown  habitually  negligent 
of  the  requirements  of  the  road  in  that  particular.  In  this  view  of  the 
case,  we  think  the  evidence  was  admissible. — not  as  evidence  of  char- 
acter, not  as  evidence  of  fitness  or  unfitness,  but  simply  as  having  some 


32  CIRCUMSTANTIAL    EVIDENCE.  No.  29. 

tendency  to  show  that  on  this  particular  occasion  these  agents  were 
more  probably  negligent  and  careless  because  they  had  before  fre- 
quently neglected  the  same  duty  with  impunity  and  had  thus  become 
habitually  negligent  in  that  regard."^ 


SCOTT  V.  SAMPSON   (1882). 
L.  R.  8  Q.  B.  D.  4pi. 

The  statement  of  claim  alleged  that  plaintiff  was  a  dramatic  critic 
engaged  in  that  capacity  in  connection  with  The  Daily  Telegraph  news- 
paper, and  the  proprietor  of  a  monthly  magazine  called  The 
^"^  Theatre;  that  defendant  was  the  proprietor  and  publisher  of  a 
weekly  paper  called  The  Referee ;  that  defendant  published  of  the  plain- 
tiff in  his  occupation  of  a  journalist  and  dramatic  critic  in  The  Referee 
the  words  following  (setting  out  an  article  extracted  from  the  paper), 
meaning  that  the  plaintiff  had  obtained  from  Admiral  Carr  Glyn  £500 
under  a  threat  of  publishing  facts  injurious  to  the  memory  of  Miss 
Neilson  (an  actress),  and  systematically  abused  his  position  as  a 
dramatic  critic  and  a  journalist  for  the  purpose  of  extorting  money. 
The  fourth  paragraph  of  the  statement  of  defense  stated  that  the  alle- 
gations in  the  article  were  true  in  substance  and  in  fact.  Reply  join- 
ing issue.  Verdict  for  the  plaintiff,  damages  £1,500.  A  rule  was  ob- 
tained calling  on  the  plaintiff  to  show  cause  why  the  verdict  should 
not  be  set  aside,  and  a  new  trial  had,  on  the  ground  that  the  learned 
judge  at  the  trial  improperly  refused  to  receive  evidence  relating  to 
the  character  of  the  plaintiff. 

Cave,  J. :  "Speaking  generally,  the  law  recognizes  in  every  man  a 
right  to  have  the  estimation  in  which  he  stands  in  the  opinion  of 
others  unaffected  by  false  statements  to  his  discredit,  and  if  such  false 
statements  are  made  without  lawful  excuse,  and  damage  results  to  the 
person  of  whom  they  are  made,  he  has  a  right  of  action.  The  dam- 
age, however,  which  he  has  sustained  must  depend  almost  entirely  on 
the  estimation  in  which  he  was  previously  held.  He  complains  of  an 
injury  to  his  reputation,  and  seeks  to  recover  damages  for  that  injury; 
and  it  seems  most  material  that  the  jury  who  have  to  award  those  dam- 
ages should  know,  if  the  fact  is  so,  that  he  is  a  man  of  no  reputation. 
'To  deny  this  M'ould,'  as  is  observed  in  Starkie  on  Evidence,  'be  to 
decide  that  a  man  of  the  worst  character  is  entitled  to  the  same  meas- 
ure of  damages  with  one  of  unsullied  and  unblemished  reputation.  A 
reputed  thief  would  be  placed  on  the  same  footing  with  the  most  hon- 
orable merchant,  a  virtuous  woman  with  the  most  abandoned  prosti- 
tute. To  enable  the  jury  to  estimate  the  probable  quantity  of  injury 
sustained,  a  knowledge  of  the  party's  previous  character  is  not  only 
material  but  seems  to  be  absolutely  essential.'     It  is  said  that  the  ad- 

6— Compare  the   authorities   cited   in   W.,  5  92. 


No.  30.  SUNDRY    EVIDENCE,    TO    PROVE    A    HUMAN    ACT.  33 

mission  of  such  evidence  will  be  a  hardship  upon  the  plaintiff,  who 
may  not  be  prepared  to  rebut  it;  and  under  the  former  practice,  where 
the  damages  could  not  be  pleaded  to,  and  general  evidence  of  bad 
character  was  allowed  to  be  given  under  a  plea  of  not  guilty,  there 
was  something  in  this  objection,  which,  however,  is  removed  under  the 
present  system  of  pleading,  which  requires  that  all  material  facts  shall 
be  pleaded ;  and  a  plaintiff  who  has  notice  that  general  evidence  of  bad 
character  will  be  adduced  against  him,  can  have  no  difficulty  what- 
ever, if  he  is  a  man  of  good  character,  in  coming  prepared  with  friends 
who  have  known  him  to  prove  that  his  reputation  has  been  good.  On 
principle,  therefore,  it  would  seem  that  general  evidence  of  reputation 
should  be  admitted,  and  on  turning  to  the  authorities  previously  cited 
it  will  be  found  that  it  has  been  admitted  in  a  great  majority  of  those 
cases,  and  that  its  admission  has  been  approved  by  a  great  majority 
of  the  judges  who  have  expressed  an  opinion  on  the  subject."^ 


Topic  B:     Other  Kinds  of  Evidence. 

PEOPLE  v.  ARNOLD   (i860). 

75  Cal.  476,  481. 

The  defendant  was  indicted  and  tried  for  feloniously  killing  one 
John  M.  Sweeney.  His  plea  was  that  the  homicide  was  in  self-defense. 
On  the  trial,  one  Lawrence  Morris  testified  that  he  was  present 
**"  on  the  twenty-fourth  of  August,  1859,  at  a  difficulty  that  then 
occurred  between  this  defendant  and  Sweeney,  in  the  course  of  which 
the  defendant  discharged  a  double-barreled  shotgun  at  Sweeney ;  he 
then  says  the  pistol  that  he  saw  lying  on  the  ground  after  Sweeney 
fell,  Sweeney  borrowed  from  Mr.  Cordes,  some  time  before  the  twen- 
ty-fourth of  August,  1859;  that  Cordes  had,  in  the  presence  of  wit- 
nesses, given  the  pistol  to  Sweeney,  who  said  he  would  clean  it.  The 
defendant's  counsel  then  asked  this  witness  the  following  question : 
"At  the  time  Cordes  gave  the  pistol  to  Sweeney,  was  anything  said 
by  Sweeney  with  reference  to  using  the  pistol  against  the  defendant, 
Philander  Arnold?"  To  this  question  the  counsel  for  the  people  ob- 
jected, on  the  ground  that  it  was  irrelevant  and  incompetent.  The 
Court  decided  that  the  testimony  was  inadmissible,  unless  evidence  was 
produced  tending  to  show  that  the  thing  said  had  come  to  the  knowl- 
edge of  the  defendant,  and  sustained  the  objection;  to  which  decision 
the  defendant  excepted. 

Baldwin,  J.:  "[The  defendant  urged]  that  this  assault  was  not 
made  by  him,  but  that  it  was  made  by  Sweeney  [the  deceased]  ;  and 
to  prove  this  he  proposed  to  show  that  Sweeney  had  armed  himself 
with  this  pistol,  that  he  had  borrowed  it,  and  that  it  was  found  at  the 
place  of  the  rencounter.  He  was  permitted  to  show  these  facts,  but  he 
proposed  to  show   a   further   fact,   and  that  was  that,   at  the  time  of 

7 — Compare   the  authorities  cited   in  W.,   §  70. 


34  CIRCUMSTANTIAL    EVIDENCE.  No.  31. 

Sweeney's  getting  the  pistol,  he  declared  what  he  meant  to  do  with 
it.  .  .  .  This  leads  to  the  inquiry,  whether  the  fact  that  A  procures  a 
Aveapon  for  a  particular  purpose  conduces  at  all  to  show,  in  a  ques- 
tion of  conflicting  proofs  as  to  the  manner  in  which  he  used  it,  what 
that  manner  was.  We  apprehend  that  if  a  man  goes  into  a  house, 
borrows  a  gun,  goes  out  with  it,  saying  that  he  means  to  use  it  on 
another,  and  a  rencounter  happens  between  him  and  that  other,  and 
the  witnesses  who  see  the  difficulty  differ,  or  the  circumstances  are 
equivocal,  as  to  which  one  of  the  two  commences  the  affray,  that  some 
light  might  be  thrown  upon  this  question,  conducing  to  or  towards  its 
solution,  by  the  proof  of  these  facts  as  to  A's  procuring  it  and  his 
motives  in  doing  so.  The  jury  might  possibly,  with  some  reason,  con- 
clude that  as  the  weapon  was  procured  for  this  purpose  of  assault  on 
another,  that  purpose  was  fulfilled;  that  the  assault,  in  other  words, 
was  made  in  pursuance  of  the  intended  purpose  when  the  weapon  was 
procured,  and  especially  if  other  facts  in  corroboration  of  this  conclu- 
sion existed.  .It  is  true  there  would  be  nothing  conclusive  in  this.  But 
the  fact  of  the  conclusiveness  of  this  proof  to  establish  the  proposition 
which  it  is  introduced  to  prove  is  not  the  decisive  question ;  that  ques- 
tion is,  whether  this  item  of  fact  be  a  matter  proper  to  be  considered 
by  the  jury  in  arriving  at_ their  conclusion  upon  this  mooted  point. 
And  we  have  no  doubt  that  it  is."^ 


COMMONWEALTH  v.  WEBSTER   (1850). 

5  Cush.  2g5,  S18,  Bemis'  Rep.  469  (1850). 

The  facts  of  this  case  are  stated  ante,  in  No.  17.  Several  wit- 
nesses, called  for  the  defence,  testified  that  they  saw  Dr.  Park- 
man  at  various  places  in  Boston,  at  different  times  between 
•*•'•  the  hours  of  a  quarter  before  two  and  five,  in  the  afternoon 
of  the  23d  of  November.  The  attorney-general,  in  rebutting  the 
evidence  for  the  defendant,  proposed  to  call  witnesses  to  show  that  there 
was  a  person  about  the  streets  of  Boston,  at  the  time  of  Dr.  Parkman's 
disappearance,  who  bore  a  strong  resemblance  to  him,  in  form,  gait,  and 
manner;  so  strong  that  he  was  approached  and  spoken  to,  as  Dr.  Park- 
man,  by  persons  well  acquainted  with  the  latter.  The  Court  excluded  the 
evidence.  Shaw,  C.  J. :  "When  a  fact  has  occurred,  with  a  series  of  cir- 
cumstances preceding,  accompanying,  and  following  it,  we  know  that 
these  must  all  have  been  once  consistent  with  each  other;  otherwise 
the  fact  would  not  have  been  possible.  Therefore,  if  any  one  fact 
necessary  to  the  conclusion  is  wholly  inconsistent  with  the  hypothesis 
of  the  guilt  of  the  accused,  it  breaks  the  chain  of  circumstantial  evi- 
dence, upon  which  the  inference  depends;  and,  however  plausible  or 
apparently  conclusive  the  other  circumstances  may  be,  the  charge  must 
fail.     Of  this  character  is  the  defense  usually  called  an  alihi;  that  is, 

8— Compare   the  authorities  cited  in   W.,  §   los- 


iSo.  oi.  SUNDRY    EVIDENCE,    TO    PROVE    A    HUMAN    ACT.  35 

that  the  accused  was  elsewhere  at  the  time  the  offense  is  alleged  to  have 
been  committed.  If  this  is  true,  it  being  impossible  that  the  accused 
could  be  in  two  places  at  the  same  time,  it  is  a  fact  inconsistent  with 
that  sought  to  be  proved,  and  excludes  its  possibility.  .  .  .  We  now  come 
to  consider  that  ground  of  defence  on  the  part  of  the  defendant  which 
has  been  denominated,  not  perhaps  with  precise  legal  accuracy,  an  alibi; 
that  is,  that  the  deceased  was  seen  elsewhere  out  of  the  medical  college 
after  the  time,  when,  by  the  theory  of  the  proof  on  the  part  of  the 
prosecution,  he  is  supposed  to  have  lost  his  life  at  the  medical  college. 
It  is  like  the  case  of  an  alibi  in  this  respect,  that  it  proposes  to  prove  a 
fact  which  is  repugnant  to  and  inconsistent  with  the  facts  constituting 
the  evidence  on  the  other  side,  so  as  to  control  the  conclusion,  or  at 
least  render  it  doubtful,  and  thus  lay  the  ground  of  an  acquittal.  And 
the  court  are  of  opinion  that  this  proof  is  material."" 


REGINA  V.   EXALL    (1866). 
4  F.  &  F.  g22. 

Burglary.  On  the  night  of  the  21st  of  December,  the  premises  were 
broken  open,  and  some  time  after  eleven  that  night,  the  money  and  articles 
mentioned  stolen.  The  prisoners  were  seen  together  on  that 
**^  night  at  a  public-house  not  far  off,  and  they  were  seen  together 
early  in  the  morning.  In  the  morning,  two  of  them,  Edwards  and 
Exall,  were  apprehended  together  on  suspicion ;  and  on  one  of  them, 
Exall,  the  watch  was  found.  The  other  prisoner,  Skelton,  was  taken 
some  time  afterwards,  and  upon  him  was  found  a  piece  of  money, 
identified  as  part  of  the  money  stolen,  and  which  he  said  he  had  from 
Edwards,  which  Edwards  did  not  deny.  Pollock,  C.  B.,  to  the  jury: 
"The  principle  is  this,  that  if  a  person  is  found  in  possession  of  prop- 
erty recently  stolen,  and  of  which  he  can  give  no  reasonable  account, 
a  jury  are  justified  in  coming  to  the  conclusion  that  he  committed  the 
robbery.  And  so  it  is  of  any  crime  to  which  the  robbery  was  incident, 
or  with  which  it  was  connected,  as  burglary,  arson,  or  murder.  For, 
if  the  possession  be  evidence  that  the  person  committed  the  robbery, 
and  the  person  who  committed  the  robbery  committed  the  other  crime, 
then  it  is  evidence  that  the  person  in  whose  possession  the  property  is 
found  committed  that  other  crime. 

"The  law  is  that  if,  recently  after  the  commission  of  the  crime,  a 
person  is  found  in  possession  of  the  stolen  goods,  that  person  is  called 
upon  to  account  for  the  possession, — that  is,  to  give  an  explanation 
of  it  which  is  not  unreasonable  or  improbable.  The  strength  of  the 
presumption  which  arises  from  such  possession  is  in  proportion  to  the 
shortness  of  the  interval  which  has  elapsed.  If  the  interval  has  been 
only  an  hour  or  two,  not  half  a  day,  the  presumption  is  so  strong 
that  it  almost  amounts  to  proof,   because  the  reasonable   inference  is 

9 — Compare  the  authorities  cited  in  W.,   §§   136-139- 


36  CIRCUMSTANTIAL    EVIDENCE.  JSlO.  ^4. 

that  the  person  must  have  stolen  the  property ;  in  the  ordinary  affairs 
of  life,  it  is  not  probable  that  the  person  could  have  got  possession  of 
the  property  in  any  other  v^^ay.  .  .  .  Such  evidence  is,  no  doubt,  not 
conclusive.  As  an  illustration  of  this,  I  may  mention  that  I  remember 
hearing  the  late  Baron  Gurney  say  that  he  once  picked  up  something 
lying  in  the  road  and  observed,  'Now^  if  this  has  been  stolen  and  I  am 
found  vi^ith  it,  I  might  be  charged  with  the  robbery.'  The  other  cir- 
cumstances in  the  case,  however,  will  always  aid  or  rebut  the  pre- 
sumption, and  it  is  not  the  less  evidence  because  it  is  not  conclusive 
evidence.  It  is  some  evidence,  if  its  weight  depends  upon  the  circum- 
stances, and  especially  on  the  nature  of  the  possession,  whether  it  is 
open  and  avowed  or  secret  and  concealed,  and  what  is  the  nature  of  the 
account  given  of  it.  What  the  jury  have  to  consider  in  each  case  is, 
what  is  the  fair  inference  to  be  drawn  from  all  the  circumstances  be- 
fore them,  and  whether  they  believe  the  account  given  by  the  prisoner 
is  under  the  circumstances  reasonable  and  probable  or  otherwise. "^° 


SUB-TITLE  II: 

EVIDENCE    TO    PROVE    A    HUMAN    QUALITY   OR 
CONDITION. 

Topic  A:     Conduct,  to  Evidence  Character. 

HARRISON'S  TRIAL  (1692). 

T2  How.  St.  Tr.  833,  864. 

Murder;  the  crier  called  Mr.  Bishop,  who  was  sworn  for  the  pros- 
ecution.    Bishop:    "About  three  years   ago  the  prisoner  came  to  my 

master's  shop  to  cheapen  some  linen;  and  when — " 
^^  Holt,  L  C.  J.:  "Hold,  hold,  what  are  you  doing  now?  Are 
you  going  to  arraign  his  whole  life?  How  can  he  defend  himself  from 
charges  of  which  he  has  no  notice?  And  how  many  issues  are  to  be 
raised  to  perplex  me  and  the  jury?  Away,  away!  That  ought  not  to 
be;  that  is  nothing  to  the  matter." 


ALEXANDER  DAVISON'S  TRIAL   (1808). 

31  How.  St.  Tr.  iSy. 

Fraud   in  public  accounts  by   a   former   commissary-general.     Lord 

Moira     (formerly    general-in-command)     sworn    for    the    defense:      "I 

never   had  the   remotest   ground   for   suspicion    [against   the   ac- 

^*         cused].  .  .  .  Shall   I    state  the   particulars?"      L    C.   J.   Ellen- 

borough:     "One  is  very  unwilling  to  diminish  the  scope  of  these  in- 

10— Compare  the  authorities  cited  in  W.,  §§   152,   iSS- 


No.  35.  CONDUCT,  TO  EVIDENCE  CHAEL\CTER.  37 

quiries,  but  the  general  inquiry  is  as  to  the  general  character."  John 
Martin  Leake  sworn;  examined  by  Mr.  Holroyd:  "I  believe  you  are 
one  of  the  comptrollers  of  the  army  accounts?"  "I  am."  "In  that 
character  have  you  at  any  time  had  Mr.  Davison's  accounts  before 
you?"  "Yes."  "Have  those  been  examined  by  you?"  L.  C.  J.  Ellen- 
borough  :  "I  really  nmst  interfere.  It  would  be  dangerous  as  a  prece- 
dent to  permit  particular  instances  to  be  given  in  evidence  where  there 
can  have  been  no  notice.  General  evidence  of  general  character  is 
admissible;  but  this  is  certainly  contrary  to  all  rule."  Mr.  Holroyd: 
"I  ask  this  question  to  show  Mr.  Leake's  means  of  knowledge."  L.  C.  J. 
Ellenborough  :  "You  ask  as  to  his  knowledge  of  the  examination  of 
public  accounts.  Now  would  it  be  proper  to  try  a  collateral  issue  for 
which  the  other  side  cannot  be  prepared?  It  is  as  clear  a  rule  of  evi- 
dence as  can  be  that  you  must  not  examine  to  particular  facts."  .  .  . 
Mr.  Holroyd:  "I  ask  this  only  as  introductory  of  general  character." 
L.  C.  J.  Ellenborough  :  "If  you  mean  only  to  ask  whether  the  wit- 
ness has  had  such  means  of  knowing  him  as  to  form  the  judgment 
he  is  about  to  give,  I  have  no  objection  to  that."  Mr.  Holroyd:  "Had 
you  opportunities,  from  examining  Mr.  Davison's  accounts,  of  knowing 
his  general  character?"  "I  have  seen  many  of  his  accounts,  and  many 
of  them  were  extremely  regular;  in  the  years  1794,  1795,  and  1796, 
they  were  before  the  comptrollers."  L.  C.  J.  Ellenborough  :  "I  cannot 
admit  this;  you  must  go  into  general  character."^^ 


R.  v.  ODDY   (1851). 
2  Den.  Cr.  C.  264. 

Indictment  with  counts  for  breaking  and  stealing,  for  larceny,  and 
for  knowing  receipt  of  stolen  goods;  after  evidence  of  the  acts  as 
charged,  on  the  dates  of  March  7  and  10,  185 1,  the  counsel  for 
the  prosecution  proposed  further  to  prove,  that  the  defendant's 
house  had  been  searched  within  an  hour  after  the  property  named  in 
the  indictment  was  found  in  his  possession,  and  that  upon  this  search, 
two  other  pieces  of  cloth  were  found  in  the  house;  and  also  that  on 
the  13th  of  December,  1850,  the  defendant  had  been  in  possession  of 
two  more  pieces  of  cloth,  and  that  these  four  pieces  of  cloth  had  been 
stolen  in  the  night  between  the  4th  and  5th  of  December,  1850,  from 
another  mill,  and  were  the  property  of  different  owners,  no  one  of 
whom  was  connected  with  the  owner  of  the  cloth  mentioned  in  the 
indictment.  The  counsel  for  the  defendant  objected  to  the  reception 
of  this  evidence.     It  was  held  inadmissible  on  any  of  the  counts. 

Campbell,  L.  C.  J. :  "The  moral  weight  of  such  evidence  in  any 
individual  case  would  no  doubt  be  great.  But  the  law  is  a  system  of 
general  rules ;  and  it  does  not  admit  such  evidence,  because  of  the  in- 
convenience which  would  result  from  it."     Mr.  Pickering,  for  the  pros- 

II — Compare  the  authorities  cited  in  W.,   §§   192-194. 


38  CIRCUMSTANTIAL    EVIDENCE.  No.  35. 

edition :  "But  in  several  analogous  cases  the  law  does  admit  such  evi- 
dence, notwithstanding  the  inconvenience;  and  there  the  inconvenience, 
which  is  confessedly  the  only  ground  of  exclusion,  is  tolerated  in  order 
that  justice  may  not  be  defeated.  The  inconvenience  is  put  upon  two 
grounds;  first,  that  of  the  prisoner  being  taken  by  surprise;  secondly, 
of  many  different  issues  being  raised."  Campbell,  L.  C.  J. :  "Yes ;  that 
is  so."  Mr.  Pickering:  "If  in  such  cases  [as  previous  utterings  of 
forgeries  to  show  intent]  justice  is  not  permitted  to  be  defeated  by  the 
argument  drawn  from  the  inconvenience  of  raising  different  issues,  why 
should  it  in  the  present  case  ?"  Campbell,  L.  C.  J. :  "It  would  have 
been  evidence  of  the  prisoner  being  a  bad  man,  and  likely  to  commit 
the  offenses  there  charged.  But  the  English  law  does  not  permit  the 
issue  of  criminal  trials  to  depend  on  this  species  of  evidence."^^ 


PEOPLE  v.  SHAY  (1895). 

14/  N.  Y.  78,  41  N.  E.  508. 

Peckham,  J.:  "Two  antagonistic  m.ethods  for  the  judicial  investi- 
gation of  crime  and  the  conduct  of  criminal  trials  have  existed  for 
many  years.  One  of  these  methods  favors  this  kind  of  evidence 
•*"  in  order  that  the  tribunal  which  is  engaged  in  the  trial  of  the 
accused  may  have  the  benefit  of  the  light  to  be  derived  from  a  record 
of  the  whole  past  life  of  the  accused,  his  tendencies,  his  nature,  his 
g.ssociates,  his  practices,  and,  in  fine,  all  the  facts  which  go  to  make 
up  the  life  of  a  human  being.  This  is  the  method  which  i€  pursued  in 
France,  and  it  is  claimed  that  entire  justice  is  more  apt  to  be  done 
where  such  course  is  pursued  than  where  it  is  omitted.  The  common 
law  of  England,  however,  has  adopted  another,  and,  so  far  as  the 
party  accused  is  concerned,  a  much  more  merciful  doctrine.  ...  In 
order  to  prove  his  guilt,  it  is  not  permitted  to  show  his  former  char- 
acter, or  to  prove  his  guilt  of  other  crimes,  merely  for  the  purpose 
of  raising  a  presumption  that  he  who  would  commit  them  would  be 
more  apt  to  commit  the  crime  in  question." 


CLARKE  V.  PERI  AM   (1742). 

2  Atk.  237. 

Hardwicke,  L.  C.  :  "The  original  bill  is  brought  to  have  satisfac- 
tion out  of  the  personal  estate  of  the  late  Mr.  Periam,  for  the  bond. 
The  cross  bill  is  brought  by  the  widow  of  Mr.  Periam,  and  is 
^^  to  be  relieved  against  this  bond,  and  to  have  it  cancelled;  and 
the  equity  is  founded  upon  this,  that  it  was  given  by  Mr.  Periam  to 
Mrs.  Clark,  ex  turpi  causa,  and  that  she  was  a  lewd  woman  of  an 
infamous  character,  and  therefore  it  is  insisted  the  court  should  relieve 
against  it. 

12 — Compare  the  doctrine  of  Nos.  44-48,    post. 


No.  38.  CONDUCT,  TO  EVIDENCE  CHARACTER.  39 

"The  counsel  insist  .  .  .  that  the  plaintiff  is  not  entitled  to  examine 
to  anything  but  her  character  in  general,  because  it  is  impossible  for 
Mrs.  C.  to  be  prepared  to  give  an  answer  to  the  particular  facts 
charged ;  for  though  everybody  is  supposed  to  be  ready,  to  support  a 
general  character,  yet  not  a  particular  fact.  ...  As  to  the  reason  of  the 
thing:  In  criminal  prosecutions  it  comes  in  only  collaterally  and  inci- 
dentally and  is  not  the  particular  thing  to  be  tried ;  and  when  that  is 
the  case,  they  are  not  supposed  to  be  prepared  with  evidence.  But 
compare  this  with  cases  where  the  character  is  the  particular  issue  to 
be  tried ;  suppose  in  the  case  of  an  indictment  for  keeping  a  common 
bawdy-house,  without  charging  any  particular  fact;  though  the  charge 
is  general,  yet  at  the  trial  you  may  give  in  evidence  particular  facts 
and  the  particular  time  of  doing  them;  the  same  rule  as  to  keeping  a 
common  gaming-house.  This  is  the  practice  in  all  cases  where  the 
general  behavior  or  quality  or  circumstance  of  the  mind  is  in  issue ; 
as  for  instance,  in  non  compos  mentis,  it  is  the  experience  of  every 
day,  that  you  give  particular  acts  of  madness  in  evidence,  and  not 
general  only,  that  he  is  insane;  so  where  you  charge  that  a  man  is 
addicted  to  drinking,  and  liable  to  be  imposed  upon,  you  are  not  con- 
fined in  general  to  his  being  a  drunkard,  but  particular  instances  are 
allowed  to  be  given.  .  .  .  Wherever  the  general  life  or  conversation  is 
put  in  issue,  it  is  notice  to  the  person  who  is  charged  that  she  should 
be  prepared  to  take  off  the  weight  of  that  evidence ;  but  where  it  comes 
in  collaterally  you  shall  be  confined  to  general  evidence.  This  seems 
to  me  to  be  the  distinction,  and  the  grounds  of  it;  and  if  I  was  of  a 
different  opinion,  I  should  overturn  the  constant  course  of  this  Court 
and  make  the  srreatest  confusion. "^^ 


UNITED  STATES  v.  HOLMES   (1858). 

I  Cliff.  98,  loS,  26  Fed.  Cas.  349,  352. 

Murder  by  a  ship-master  on  the  high  seas ;  the  defense  was  that  the 
accused  was  insane.  Clifford,  J.:  "Inquiries  were  made  of  this  wit- 
ness, in  his  examination  in  chief,  not  only  as  to  the  acts,  conduct, 
and  declarations  of  the  prisoner  during  the  attacks,  but  on  other 
occasions  throughout  the  voyage.  In  the  course  of  the  cross-examina- 
tion he  was  asked  whether  any  difficulty  occurred  during  the  voyage 
between  the  prisoner  and  the  mate.  That  question  was  objected  to  by 
the  counsel  for  the  prisoner,  and  was  admitted  by  the  court.  Various 
acts,  conduct,  and  declarations  of  the  prisoner,  during  those  difficulties, 
were  stated  by  the  witness  in  answer  to  the  questions  propounded  by 
the  district  attorney.  It  is  insisted  by  the  counsel  for  the  prisoner  that  the 
question  objected  to  should  have  been  ruled  out,  and  that  all  the  testi- 
mony of  this  witness,  so  far  as  respects  the  acts,  conduct,  and  declara- 
tions of  the  prisoner  during  these  difficulties,  was  improperly  admitted. 

13 — Compare  the  autliorities  cited  in  W.,    §§   202-207. 


40  CIRCUMSTANTIAL    EVIDENCE.  No.  38. 

(i)  They  contend  that  the  effect  of  the  ruHngs  was  to  allow  the  gov- 
ernment to  establish  the  offence  charged  against  the  prisoner,  by  prov- 
ing that  he  had  committed  other  acts  of  violence  of  a  like  kind.  (2) 
In  the  second  place,  they  insist  that  the  rulings  authorized  an  illegal 
attack  upon  the  character  of  the  prisoner,  when,  in  fact,  and  in  truth, 
he  had  offered  no  evidence  putting  his  character  in  issue.  (3)  And 
lastly,  they  contend  that  the  evidence  was  a  surprise  upon  the  prisoner, 
who  could  not  be  expected  to  come  to  trial  on  the  charge  in  the  indict- 
ment, prepared  to  defend  his  whole  life.  All  the  answer  that  need  be 
given  to  the  first  proposition  is,  to  state  that  the  theory  of  fact  on 
which  it  is  based  is  not  correct,  and  to  refer  to  what  has  already  ap- 
peared in  verification  of  the  statement.  It  is  a  mistake  to  suppose  that 
the  evidence  in  question,  or  any  part  of  it,  was  admitted,  or  even 
offered  as  having  any  bearing  whatever  upon  the  question  whether  the 
prisoner  was  the  guilty  agent  who  committed  the  act  of  homicide 
charged  in  the  indictment.  On  the  part  of  the  prisoner  many  wit- 
nesses had  been  called  and  examined,  and  his  acts,  conduct  and  declara- 
tions, not  only  throughout  this  voyage,  but  throughout  his  whole  life, 
from  early  youth  to  the  time  of  his  arrest,  had  been  introduced  into 
the  case.  His  covmsel,  in  offering  his  acts,  conduct  and  declarations, 
accordingly  selected,  as  was  very  properly  admitted  at  the  argument, 
the  dark  spots  in  his  life,  or  those  most  peculiar  and  least  in  accord- 
ance with  the  ordinary  conduct  of  men,  as  best  suited  to  support  the 
defence  set  up  by  the  prisoner  in  this  ca^.  All  of  the  testimony  ob- 
jected to,  and  now  under  consideration,  was  admitted  in  reply  to  that 
which  had  previously  been  introduced  by  the  prisoner  to  support  that 
ground  of  defence. 

".  .  .  Beyond  doubt  the  precise  question  to  be  tried  in  all  such  cases 
is  whether  the  accused  was  insane  at  the  time  he  committed  the  act, 
and  to  that  point  all  the  evidence  must  tend.  Great  difficulties  sur- 
round the  inquiry,  and  it  is  for  that  reason  that  the  rules  of  law  allow 
a  wide  range  of  testimony  in  the  investigation.  .  .  .  One  of  the  sug- 
gestions .  .  .  was  that  the  government,  in  attempting  to  rebut  the  tes- 
timony offered  by  the  prisoner  on  this  point  [of  insanity]  should  have 
been  limited  to  the  explanation  or  denial  of  the  particular  transactions, 
acts,  conduct,  and  declarations  introduced  by  the  prisoner  to  make  out 
his  defense.  .  .  .  [It]  cannot  be  sustained.  Most  men  in  the  course 
of  their  lives,  in  times  of  excitement  produced  by  disease  or  otherwise, 
do  many  strange  and  peculiar  acts,  and  oftentimes  give  utterance  to 
eccentric  or  unusual  language;  and  it  is  obvious  that  if  a  person  ac- 
cused of  crime  may  select  and  offer  in  evidence  all  the  dark  spots  of 
his  life,  or  every  peculiar  and  unusual  act  and  declaration,  and  be 
allowed  to  exclude  all  the  rest,  that  many  guilty  offenders  must  escape 
and  justice  be  often  defeated,  because  the  means  of  ascertaining  the 
truth  are  excluded  from  the  jury.  .  .  .  [Whenever  the  accused  has 
offered  his  acts,  conduct,  and  declarations  before  and  after  the  homi- 


No.  39,  CONDUCT,  TO  EVIDENCE  CHARACTER.  41 

cide,]  the  government  may  offer  evidence  of  other  acts,  conduct,  and 
declarations  of  the  accused  within  the  same  period  to  show  that  he 
was  sane  and  to  rebut  the  evidence  introduced  by  the  defense."^* 


MILLER  V.   CURTIS    (1893). 

158  Mass.   I2J,   i^i,  ^2  N.  E.  10^9. 

Action  of  tort  for  indecent  assault  and  battery  upon  a  married 
woman ;  the  defendant  denied  the  assault,  and  offered  evidence  to  show 
that  the  claim  was  only  an  attempt  at  blackmail.  Knowlton,  J. : 
"The  defendant  was  allowed  to  introduce  evidence  of  several 
transactions  and  conversations  with  the  plaintiff,  all  occurring  more 
than  tw'enty  years  ago,  which  tended  to  show  that  she  had  repeatedly 
made  false  charges  of  indecent  assaults  upon  her,  with  a  view  to  extort 
money  from  innocent  men.  The  defendant  denies  the  charge  made 
against  him  in  the  suit,  and  contends  that  the  plaintiff  is  trying  un- 
justly to  obtain  money  from  him.  In  any  case,  where  the  question  is 
whether  the  defendant  has  committed  a  crime,  it  would  naturally  affect 
the  opinion  of  jurors  to  know  that  he  had  often  committed  similar 
crimes ;  but  evidence  of  such  facts  is  never  admitted  to  prove  a  de- 
fendant's guilt.  That  a  person  has  committed  one  crime  has  no  direct 
tendency  to  show  that  he  committed  another  similar  crime  which  had 
no  connection  with  the  first ;  and  a  person  charged  with  one  offence 
cannot  be  expected  to  come  to  court  prepared  to  meet  a  charge  of 
another.  If  the  doing  of  one  wrongful  act  should  be  deemed  evidence 
to  prove  the  doing  of  another  of  a  similar  character  which  has  no 
connection  with  the  first,  issues  would  be  multiplied  indefinitely  with- 
out previous  notice  to  the  defendant,  and  greatly  to  the  distraction  of 
the  jury.  It  is  too  clear  for  argument,  under  the  authorities,  that  most 
of  the  evidence  excepted  to  was  not  competent  on  the  question  of 
liability,  and  the  defendant  does  not  seriously  contend  that  it  was. 

"It  is  argued,  however,  that  it  was  competent  on  the  question  of 
damages,  and  the  jury  were  instructed  to  consider  it  only  on  that 
question.  There  is  much  authority  for  the  proposition,  that  in  a  suit 
of  this  kind,  when  a  plaintiff  seeks  damages  for  an  injury  to  her  feel- 
ings, growing  out  of  the  indecency  of  the  defendant's  conduct,  her 
character  in  regard  to  chastity  is  in  issue,  and  her  damages  depend 
somewhat  on  the  question  whether  she  is  a  virtuous  woman,  who  would 
be  greatly  shocked  at  the  peculiar  nature  of  the  assault,  or  a  woman 
who  is  accustomed  to  yield  herself  to  illicit  intercourse.  If  it  were 
permissible  to  show  specific  acts  of  criminal  intercourse  on  the  part 
of  the  plaintiff  to  affect  the  damages  to  be  awarded  in  actions  for  an 
indecent  assault,  it  would  not  follow  that  the  evidence  excepted  to  in 
the  present  case  should  have  been  admitted.  Most,  if  not  all,  of  this 
testimony  tended  to  prove,  not  that  the  plaintiff  had  had  criminal  inter- 

14 — Compare  the  authorities  cited  in  VV.,    §    228. 


42  CIRCUMSTANTIAL    EVIDENCE.  No.  39. 

course  with  other  men,  but  that  she  had  falsely  pretended  that  others 
had  indecently  assaulted  her,  with  a  view  to  extort  money  from  them. 
The  rule  contended  for  certainly  should  not  be  extended  so  far  as  to 
admit  testimony  of  common  crimes  and  ordinary  wrongful  acts,  merely 
to  show  general  depravity. 

"But  we  are  inclined  to  hold  the  evidence  incompetent  on  broader 
grounds.  It  is  a  general  rule,  which  has  been  adhered  to  with  great 
strictness  in  this  Commonwealth,  that  when  character  is  in  issue,  it  may 
be  shown  only  by  evidence  of  general  reputation,  and  not  by  proof  of  spe- 
cific acts.  .  .  .  The  principal  reason  for  this  rule  is  that  a  multiplicity  of 
issues  would  be  I'aised  if  special  acts,  covering  perhaps  a  lifetime, 
covild  be  shown.  It  might  be  necessary  to  go  into  the  circumstances 
attending  each  act  before  it  could  be  determined  what  its  nature  was 
and  what  effect  should  be  given  it.  It  would  be  impossible  for  the 
opposing  party  to  come  prepared  to  meet  evidence  upon  matters  in 
regard  to  which  he  had  no  notice,  and  great  injustice  might  be  done 
by  bearing  biased  and  false  testimony  to  which  no  answer  could  be 
made."^^ 


CUNNINGHAM  v.  RAILROAD  CO.   (-1895). 

88  Tex.  524,  31  S.  W.  629. 

Denman,  J. :  Appellant  seeks  to  recover  damages  for  the  death  of 
her  husband,  James  Cunningham,  a  conductor  on  one  of  appellee's 
trains,  caused  by  a  wreck  occasioned  by  the  breaking  of  a  car 
wheel  on  a  car  running  from  Llano  to  Austin  on  the  22d  day  of 
December,  1892.  The  witness,  Rownie,  for  defendant,  testified  that  he 
inspected  the  wheel  on  the  morning  of  the  accident,  at  Llano.  On 
cross-examination  the  witness  Rownie  testified  that  the  reason  he  said 
he  inspected  it  on  December  22d  was  because  he  understood  the  acci- 
dent was  on  that  date,  and  because  he  inspected  that  car  every  day  it 
was  in  Llano.  Counsel  for  appellant  thereupon  asked  the  witness 
whether  he  inspected  the  cars  at  Llano  on  the  23d  and  27th  days  of 
December,  1892,  January  6,  1893,  February  21,  1893,  March  9,  1893. 
and  April  4,  1893,  all  subsequent  to  the  date  of  the  accident;  counsel 
stating  that  the  object  of  the  question  was  to  prove  by  Rownie  that  on 
said  dates  he  had  not  inspected  the  wheels  of  appellee's  trains  at 
Llano;  and,  if  he  stated  that  he  had  inspected  them  on  any  one  or  all  of 
the  above  dates,  then  to  offer  witnesses  who  would  testify  that  he  did 
not  inspect  them  on  either  of  said  dates.  If  there  was  no  issue  in  this 
case  as  to  Rownie's  competency,  we  are  of  the  opinion  that  there  would 
be  no  causal  connection  between  the  negligence  of  Rownie  on  days 
subsequent  to  the  injury  and  the  death  of  Cunningham.  Such  subse- 
quent neglect  of  duty  to  inspect  cars  might  raise  a  moral  probability 
that  he  failed  to  inspect  the  car  on  the  morning  of  the  accident,  but 

IS — Compare  the  authorities  cited  in  W.,    §§  210-212. 


No.  41.      CONDUCT,    TO    EVIDENCE    KNOWLEDGE,    INTENT,   ETC.  43 

such  probability  alone  would  not  connect  such  negligence  with  the 
chain  of  circumstances  resulting  in  the  death.  In  order  to  prevent 
confusion  and  surprise  in  the  trial  of  causes  of  this  character,  courts 
have,  as  a  general  rule,  confined  the  evidence  to  circumstances  tending 
to  establish  facts  constituting  links  in  the  chain  of  circumstances  hav- 
ing a  causal  connection  with  the  injury. 

"The  pleadings  and  evidence,  however,  raise  the  issue  as  to  Rownie's 
competency  as  a  car  inspector  which  involves,  first,  his  skill ;  and, 
second,  his  attentiveness  to  duty.  If  he  was  lacking  in  either  of  these 
qualities,  he  could  not  be  said  to  be  competent  to  perform  the  im- 
portant duties  required  of  him.  It  is  a  matter  of  common  knowledge 
that  some  persons  are  by  nature  inattentive  or  thoughtless,  and,  as  a 
result  thereof,  frequently  neglect  the  performance  of  important  duties, 
without  any  intention  so  to  do.  This  mental  quality  can  only  be  evi- 
denced by  the  outward  acts  of  the  person,  and,  where  its  existence  or 
non-existence  is  in  issue,  evidence  of  such  acts  is  admissible.  If 
Rownie  was  an  inattentive  or  thoughtless  person,  such  mental  quality 
was  a  relevant  fact  upon  the  issue  as  to  whether  he  probably  inspected 
the  cars  on  the  particular  morning  of  the  accident.  .  .  .  Thus  it  seems 
that  frequent  failures  to  perform  this  duty  at  different  times  would 
be  competent  evidence  tending  to  prove  this  mental  condition,  and  we 
see  no  reason  v/hy  such  omissions  subsequent  to  the  time  of  the  acci- 
dent would  be  less  competent  than  similar  omissions  prior  to  the  time 
of  the  accident.  The  question  here  is  the  existence  or  non-existence 
of  a  mental  condition  or  quality  of  the  servant ;  inattentiveness  or 
thoughtlessness,  rendering  him  incompetent,  such  incompetency  being 
direct  evidence  on  the  main  issue  in  the  case.  We  see  no  reason  why 
specific  acts  cannot  be  given  in  evidence  upon  such  issue,  just  as  they 
could  upon  the  issue  of  testamentary  or  contractual  capacity."^® 


Topic  B:     Conduct,  to  Evidenxe  Other  Qualities  than  Moral 
Character  (Knowledge,   Plan,  Intent,  Motive,  Etc.) 

CHICAGO  v.  POWERS  (1866). 

^2  III.  169,  775. 

Walker,  C.  J.:  "This  was  an  action  on  the  case  brought  by  Mar- 
garet Powers,  administratrix  of  Mary  Powers,  deceased,  against  the 
city  of  Chicago,  in  the  Cook  Circuit  Court.  The  action  was 
^'^  brought  to  recover  damages  claimed  to  have  accrued  from  negli- 
gence of  the  city,  which  produced  the  death  of  intestate.  It  appears 
that  the  city,  on  the  i8th  of  October,  1865.  and  prior  thereto,  main- 
tained a  bridge,  with  its  appurtenances,  across  the  Chicago  rivei  con- 
necting north  and  south  Clark  street;  that  the  bridge  is  so  constructed 

16 — Compare  the  authorities  cited  in  W.,    §  208,  and  the  doctrine  of  No.  42,  post. 


44  CIRCUMSTANTIAL    EVIDENCE.  No.  41. 

as  to  swing  on  its  center,  so  as  to  permit  the  passage  of  vessels  navi- 
gating the  river;  that  on  the  night  of  the  i8th  of  October,  1865, 
deceased,  in  attempting  to  pass  over  the  bridge,  while  near  the  north 
approach,  the  bridge  being  on  the  swing,  stepped  or  fell  through  the 
opening  into  the  river  and  was  drowned.  It  is  claimed  by  appellee 
that  the  night  was  dark,  and  that  the  lights  on  the  bridge,  which  had 
been  furnished  by  appellant  were  insufficient.  It  is  insisted  that  the 
court  erred  in  admitting  evidence  that  another  person  had  fallen 
through  the  same  bridge.  If  this  evidence  was  admissible  for  any 
purpose,  then  it  was  not  error.  The  action  was  based  upon  the  negli- 
gence of  the  city  in  failing  to  keep  the  bridge  properly  lighted.  If 
another  person  had  met  with  a  similar  fate,  at  the  same  place,  and 
from  a  like  cause,  it  would  tend  to  show  a  knowledge  on  the  part  of 
the  city,  that  there  was  inattention  on  the  part  of  their  agents  having 
charge  of  the  bridge,  and  that  they  had  failed  to  provide  further  means 
for  the  protection  of  persons  crossing  on  the  bridge.  As  it  tended  to 
prove  this  fact,  it  was  admissible. "^^ 


BAULEC  V.  RAILROAD  CO.    (1874). 

59  N.   Y.  356,  358. 

This  action  was  brought  to  recover  damages  for  the  alleged  negli- 
gent causing  the  death  of  Thomas  Hammond,  plaintiff's  intestate. 
Hammond  was,  at  the  time  of  his  death,  in  the  employ  of 
^"  defendant  as  a  fireman  upon  a  locomotive  running  upon  its  road. 
The  accident  occurred  at  a  junction  of  defendant's  road 
with  the  New  York  and  New  Haven  road,  and,  as  the  evidence  tended 
to  show,  was  occasioned  by  the  negligence  of  defendant's  switchman 
at  that  point,  one  McGerty,  who,  after  the  passage  of  the  New  Haven 
train,  changed  the  signal  so  that  it  indicated  that  the  switch  was  right 
for  the  Harlem  train  without  changing  the  switch.  Plaintiff  offered 
evidence  upon  the  trial  that  some  six  or  seven  months  before  this 
accident  a  New  Haven  freight  train  met  with  a  similar  accident  at  this 
same  switch.  Allen,  J. :  "When  as  here  the  general  fitness  and  capa- 
city of  a  servant  is  involved,  the  prior  acts  and  conduct  of  such  servant 
on  specific  occasions  may  be  given  in  evidence,  with  proof  that  the 
principal  had  knowledge  of  such  acts.  The  cases  in  which  evidence 
of  other  acts  of  misconduct  or  neglect  of  servants  or  employes,  whose 
acts  and  omissions  of  duty  are  the  subject  of  investigation,  have  been 

17 Knozvlton,    J.,    in    Chase    v.    Loivell,  likely   to    discover    it    in   the    first    instance 

151    Mass.   422,   426,    24   N.    E.   212    (1891):  with    their    own    eyes,    but    quite    as    much 

"The   fact  that  it   [the  highway-defect]   was  from    the    probability    that    their    attention 

generally  talked  about   in   the  community  is  would    have    been    brought    by    others    to    a 

a  circumstance  which  may  properly  be  con-  matter    which    was    generally    talked    about 

sidered.     In  such   a  case,  notoriety  derives  and  in   which   they  were  interested." 
its  force  as  evidence,   not  merely   from  its  Compare    the    authorities    cited    in    W., 

suggestion   that   the    defect   was   of   such    a  §§  245,  252;  and  the  doctrine  of  Nos.  S3-5S. 

kind  that  the   authorities   would  have  been  post. 


No.  43.       CONDUCT,    TO    EVIDENCE    KNOWLEDGE,    INTENT,  ETC.  45 

held  incompetent,  have  been  those  in  which  it  has  been  sought  to  prove 
a  culpable  neglect  of  duty  on  a  particular  occasion,  by  showing  similar 
acts  of  negligence  on  other  occasions.  This  class  of  cases  does  not 
bear  upon  the  case  in  hand,  and  may  be  laid  out  of  view. 

"When  character,  as  distinguished  from  reputation,  is  the  subject  of 
investigation,  specific  acts  tend  to  exhibit  and  bring  to  light  the  pecu- 
liar qualities  of  the  man,  and  indicate  his  adaptation  or  want  of  adap- 
tation to  any  position,  or  fitness  or  unfitness  for  a  particular  duty  or 
trust.  It  is  by  many  or  by  a  series  of  acts  .  .  .  that  the  actual  quali- 
ties, the  true  characteristics  of  individuals,  those  qualities  and  charac- 
teristics which  would  or  should  influence  and  control  in  the  selection 
of  agents  for  positions  of  trust  and  responsibility,  are  known.  .  .  .  [But 
only  a  single  instance  of  carelessness  in  eight  years'  service  was  here 
shown.]  A  single  act  of  casual  neglect  does  not  per  sc  tend  to  prove 
the  party  to  be  careless  and  imprudent  and  unfitted  for  a  position  re- 
quiring care  and  prudence.  Character  is  formed  and  qualities  exhib- 
ited by  a  series  of  acts  and  not  by  a  single  act.  An  engineer  might 
from  inattention  omit  to  sound  the  whistle  or  ring  the  bell  at  a  rail- 
road crossing;  but  such  fact  would  not  tend  to  prove  him  a  careless 
and  negligent  servant  of  the  company.  .  .  .  The  question  in  this  case 
was  whether  the  single  occurrence  detailed  by  the  witness,  in  connec- 
tion with  other  circumstances  and  with  his  general  character  and  con- 
duct, was  such  as  to  make  it  necessary  for  the  defendant,  in  the  exer- 
cise of  proper  care  and  prudence  such  as  the  law  enjoins,  to  discharge 
this  switchman.  I  am  clearly  of  opinion  that  there  was  not  sufficient 
evidence  to  go  to  the  jury."^^ 


REGINA  v.  COOPER   (1849). 

3  Cox  Cr.  C.  547. 

The  prisoner  was  indicted  for  feloniously  accusing  one  H.  C.  S.  of 

having  assaulted   him   with   intent  to  commit  b y,  with   intent  to 

extort  money.  There  were  other  counts  for  accusing  the  said 
H.  C.  S.  of  having  attempted  and  having  solicited  him  to  commit 
the  said  crime.  It  appeared  in  evidence  that  on  the  night  in  question 
the  prosecutor  was  taking  shelter  from  the  rain  under  one  of  the 
porticoes  of  Buckingham  Palace,  when  he  was  accosted  by  the  pris- 
oner, who  was  the  sentry  on  duty  there.  After  some  conversation  the 
prisoner  seized  the  prosecutor  by  the  collar,  and  charged  him  with 
having  indecently  touched  or  assaulted  him ;  he  then  took  the  prosecutor 
to  the  guard-house,  and  said  to  the  serjeant,  "I  charge  this  man  with 
indecently  asaulting  me."  The  prosecutor  was  then  taken  to  the  police 
station-house,  where  the  prisoner  made  the  same  charge.  A  bill  of 
indictment  was  presented  at  the  next  Middlesex  Sessions  against  the 

18 — Compare  the  authorities  cited  in  W.,    §§    249-250. 


46  CIRCUMSTANTIAL    EVIDENCE.  No.  43. 

prosecutor  for  indecently  assaulting  Samuel  Cooper,  but  it  was  ignored 
by  the  grand  jury.  Cooper,  the  then  prosecutor,  not  appearing. 

In  the  course  of  the  trial.  Bodkin  (with  whom  was  Richards,  for  the 
prosecution),  asked  one  of  the  witnesses  for  the  prosecution  whether 
he  had  ever,  upon  former  occasions  when  the  prisoner  had  come  off 
guard,  seen  money  in  his  possession. 

Ballantine  (for  the  prisoner),  submitted  that  such  a  question 
could  not  be  put.  It  had  no  relevancy  to  the  present  inquiry.  On 
such  a  charge  no  evidence  of  other  transactions  could  be  adduced, 
because  its  only  tendency  could  be  to  prejudice  the  minds  of  the  jury — 
to  ask  them  to  judge  from  past  conduct  what  was  likely  to  have  been 
done  by  the  prisoner  on  this  occasion. 

Bodkin  contended  that  the  question  was  quite  regular.  Where  part 
of  the  issue  to  be  tried  was  the  knowledge  or  the  intention  of  the  ac- 
cused at  the  time  he  did  a  particular  act,  matters  having  no  immediate 
bearing  on  that  act  become  material  and  relevant,  if  they  in  any  way 
tended  to  explain  his  motives.  Here  the  prisoner's  conduct  on  other 
like  occasions  was  very  material  in  enabling  the  jury  to  determine  with 
what  object  this  particular  proceeding  was  taken  by  Iiim.  The  evidence 
was  admissible  in  the  same  way  that  proof  of  other  utterings  was  of- 
fered to  show  guilty  knowledge  although  they  might  be  totally  dis- 
connected with  the  one   under   consideration. 

Cress  WELL,  J.:  "Are  you  not  asking  the  jury  to  infer  guilty  knowl- 
edge from  remote  and  independent  facts  ?  Suppose  a  man  was  charged 
with  wounding  with  intent —  the  intention  there  is  of  the  essence  of 
the  charge — could  you  prove  that  he  had  cut  a  man's  head  open  the 
week  before?" 

Bodkin  submitted  that  he  could,  if  both  wounds  were  given  with 
the  same  instrument. 

Cresswell,  J. :  "How  would  that  show  the  intention  otherwise  than 
by  showing  knowledge?" 

Bodkin:  "Just  as  the  possession  of  other  counterfeit  coin  may  be 
proved  in  an  indictment  for  uttering." 

Cressv^ell,  J.:  "There  knowledge,  and  not  intention,  is  the  subject 
of  the  proof.  But  suppose  the  witness  gives  an  affirmative  answer  to 
your   question,   what   is   your   next   step?" 

Bodkin :  "I  shall  then  ask  what  he  said  as  to  the  means  by  which 
he  obtained  the  money." 

Ballantine  said  that  he  objected  to  any  such  question,  on  the 
grounds  before  urged. 

Cresswell,  J. :  "But  if  the  prisoner  is  proved  to  have  stated  on 
other  occasions  that  he  had  obtained  money  by  the  same  means  that 
are  stated  to  have  been  used  in  this  case,  is  it  not  a  fair  inference  to 
make  to  the  jury  that  his  object  was  to  obtain  money  here?" 

Ballantine:  "To  prove  guilty  knowledge  is  not  to  prove  a  guilty 
intention.     Proof  of  a  man's  previous  character  would,  in  the  ordinary 


No.  43.    CONDUCT,    TO    EVIDENCE    KNOWLEDGE,    INTENT,   ETC.  47 

affairs  of  life,  have  some  bearing  upon  the  question  of  whether  he  had 
committed  a  particular  crime/  but  it  is  admissible  in  law." 

Cresswell,  J.:  "If  a  man  administers  a  certain  drug  to  another, 
and  it  produces  death,  and  afterwards  administers  the  same  drug  to 
another  person,  may  not  the  former  conduct  be  proved  to  show  that 
he  well  knew  the  consequences  of  the  subsequent  act?" 

Ballantine :  "Not  where  it  is  simply  used  as  evidence  to  prove 
intention.  The  prisoner  may  have  used  threats  on  a  previous  occasion, 
and  have  obtained  money  by  so  doing,  but  that  does  not  show  that 
he  had  an  intention  to  obtain  money  at  this  particular  time.  The 
offence  here  charged  is  a  single  and  specific  one.  Suppose  the  charge 
was  breaking  into  a  house  with  intent  to  steal,  the  fact  of  his  having 
broken  into  the  house  before  would  show  that  he  knew  how  the  offence 
was  to  be  accomplished,  but  it  could  not  be  adduced  to  show  what  his 
intention  was  on  the  second  occasion,  and  this  shows  the  dift'erence  be- 
tween proof  of  knowledge  and  that  of  intention.  The  broad  rule  that 
two  felonies  cannot  be  proved  on  the  trial  of  one  indictment  is  clearly 
recognized,  and  there  is  nothing  in  this  instance  to  show  that  it  should 
be  departed  from." 

Cresswell,  J. :  "I  do  not  think  that  this  is  at  all  a  question  of 
character.  The  evidence  is  not  offered  by  way  of  proving  simply  that 
the  prisoner  had  been  guilty  of  the  same  crime  before.  The  question 
is,  whether  on  this  occasion  he  did  not  act  with  the  design  of  effecting 
a  certain  object.  One  step  in  the  proof  is  to  show  that  he  would  be 
likely  to  know  that  a  certain  result  would  follow,  and  if  it  can  be 
proved  out  of  his  own  mouth  that  he  was  aware  that  such  result  would 
be  produced,  it  is  one  ingredient  in  the  necessary  proof  that  he  con- 
templated it.  Suppose  a  charge  against  a  man  that  he  had  attempted 
to  procure  abortion :  the  same  medicine  might  be  administered  with 
that  intention  or  without  it.  If  it  could  be  proved  that  he  had  often 
given  that  medicine  before,  and  that  he  knew  that  abortion  had  always 
followed,  surely  that  would  be  evidence  against  him.  Or  if,  on  a 
charge  of  wounding,  a  certain  instrument  had  been  used,  and  the  same 
weapon  had  before  been  used  by  the  prisoner  with  a  dangerous  result, 
would  not  that  be  admissible  to  show  that  he  knew  the  consequences  of 
using  it?  .  .  .  His  whole  conduct  is  to  be  interpreted  with  reference  to 
the  charge  made  against  him,  and  I  think  what  was  said  by  him  under 
similar  circumstances  to  the  present  is  admissible." 

Evidence  was  then  given  of  declarations  by  the  prisoner  on  a  for- 
mer occasion,  on  cOming  off  guard,  that  he~had  obt«i«ed  money-^om  a 
gentleman  by  threatening  to  take  him  to  the  guard-house  and  accuse 
him  of  an  umiatural  crime. ^'^ 

19 — 1882,  Devcns,^.,  in  Com.  v.  Jackson,  ground    for    inference    against    him    as    to 

132  Mass.  18:     "It  is  the  knowledge  which  intent  in  the  matter  under  examination." 

it   may   be   inferred   he   must   have   derived  Compare    the    authorities    cited     in    W., 

from    other    transactions    .    .    .    that    makes  §  352. 
the    evidence    admissible   as   affording    just 


48  CIRCUMSTANTIAL    EVIDENCE,  No.  44, 

COLEMAN  V.  PEOPLE   (1873). 

55  N.  Y.  81,  90. 

Indictment  for  receiving  22  bars  of  pig-iron,  the  property  of  one 
Burke,   knowing  them  to  have  been  stolen.      The  fact  that  pieces  of 

iron    raiHng,    stolen    from   one    Briggs,    w^ere    also    found    in    the 

accused's  possession,  was  offered. 
Allen,  J.:  "The  circumstances  that  boys  brought  pieces  of  iron 
railing  to  the  prisoner's  store  in  the  evening,  although  in  his  absence, 
which  had  been  stolen  from  Briggs,  which  were  afterwards  found  in 
the  prisoner's  possession  and  taken  by  Briggs  from  there,  was  a  cir- 
cumstance of  suspicion  as  evidence  of  criminal  complicity  against  him. 
The  general  rule  is  against  receiving  evidence  of  another  offence.  A 
person  cannot  be  convicted  of  one  offence  upon  proof  that  he  com- 
mitted another,  however  persuasive  in  a  moral  point  of  view  such 
evidence  may  be.  It  would  be  easier  to  believe  a  person  guilty  of  one 
crime  if  it  was  known  that  he  had  committed  another  of  a  similar  char- 
acter, or,  indeed,  of  any  character;  but  the  injustice  of  such  a  rule  in 
courts  of  justice  is  apparent.  There  are,  however,  some  exceptions  to 
this  rule  when  guilty  knowledge  is  an  ingredient  of  the  crime ;  and 
the  question  is,  whether  this  evidence  falls  within  any  recognized  ex- 
ception. King  v.  Dunn  &  Smith  (i  M.  C.  C,  146)  is  a  leading  au- 
thority upon  the  subject.  The  report  says:  *As  all  the  property  had 
been  stolen  from  the  same  persons  and  had  all  been  brought  to  her 
by  the  prisoner,  Dunn,  the  learned  judge  thought  it  was  admissible 
and  proper  to  be  left  to  the  jury  as  an  ingredient  to  make  out  the 
guilty  knowledge.'  It  is  unnecessary  to  say  that  all  these  qualifications 
must  exist;  but  to  warrant  the  introduction  of  such  evidence  there 
must  be  such  a  connection  of  circumstances  as  that  a  natural  inference 
may  be  drawn,  that  if  the  prisoner  knew  that  one  article  was  stolen 
he  would  also  be  chargeable  with  knowledge  that  another  was.  The 
Briggs  iron  had  no  connection  with  the  pig-iron ;  it  was  taken  from 
another  place,  belonged  to  another  person,  was  of  a  different  character, 
and  received  at  another  time,  and,  for  aught  that  appears,  some  of  it 
from  different  persons.  Assuming  therefore,  that  the  prisoner  received 
the  Briggs  iron  and  was  chargeable  with  knowledge  that  it  had  been 
stolen,  would  that  circumstance  logically  or  legally  charge  him,  or 
tend  to  charge  him.  with  knowledge  that  the  pig-iron  was  also  stolen? 
We  think  it  would  be  carrying  the  exception  too  far,  and  beyond  the 
authorities  to  so  hold,  and  would  be  a  dangerous  innovation  upon  the 
general  rule."'^ 

20 — Ellenhorough,    L.     C.    J.,    in    R.    v.  against  extrinsic   facts  is  not  correct.     The 

Whyley,     2    Leach,     4th    ed.    985,     (1804):  indictment  alleges  that  the  prisoner  uttered 

"The   observations   respecting  prisoners   be-  this    note    knowing    it    to    be    forged;    and 

ing    taken    by    surprise  and   coming   unpre-  they    must   know    that,    without    the    recep- 

pared     to     answer     or     defend     themselves  tion  of  other  evidence  than  that  which  the 


No.  45.      CONDUCT,    TO    EVIDENCE    KNOWLEDGE,    INTENT,  ETC.  49 

BOTTOMLEY  v.   UNITED   STATES    (1840). 
/  Story  1^5,  3  Fed.   Cas.  97/. 

Information  for  fraudulent  importation  of  goods,  by  misrepresent- 
ing the  ownership  and  the  cost  of  the  goods.  Story,  J.:  "In  respect  to 
the  evidence  admitted  at  the  trial,  I  am  clearly  of  opinion  that 
**  the  whole  of  it  was  admissible  to  substantiate  the  fraud.  It 
divides  itself  into  four  heads:  .  .  .  (4)  The  evidence  of  the  importation 
of  other  goods  of  the  same  character,  cost,  and  value,  as  those  imported 
by  the  claimant  in  the  Roscoe,  shipped  about  the  same  time  with  those 
in  the  Roscoe,  marked  with  the  same  marks,  and  numbered  in  an  exact 
and  progressive  continuation  of  the  cases  of  the  goods  of  the  claimant 
in  the  Roscoe ;  and,  also,  evidence,  that  the  same  goods  arrived  in  four 
different  shipments  soon  after  the  seizure  of  the  claimant's  goods  in 
the  Roscoe,  and  before  the  news  of  the  seizure  could  have  reached  Eng- 
land ;  that  the  same  goods  were  not  then  entered  at  the  custom  house, 
but  were  entered  by  one  William  Bottomley,  as  being  the  property  of 
James  Bottomley,  senior,  after  full  knowledge  of  the  seizure  must  have 
been  known  in  England;  and  that  they  were  then  entered  at  a  greatly 
enhanced  price  and  rate  beyond  those  imported  in  the  Roscoe.  This 
last  evidence  was  avowedly  offered  as  tending  to  establish  two  im- 
portant facts:  (i)  That  the  claimant  was  the  real  owner  of  these  ship- 
ments; (2)  that  the  cost  of  the  goods  by  the  Roscoe,  as  entered  by  the 
claimant,  was  knowingly  and  fraudulently  set  forth  in  the  entry. 

"The  objection  taken  to  all  these  three  last  portions  of  the  evidence 
excepted  to,  is,  that  it  is  res  inter  alios  acta,  and  upon  other  occasions; 
and  therefore,  not  properly  admissible  to  establish  a  fraud  in  the  case  of 
the  importation  of  the  goods  now  before  the  court.  But  it  appears  to  me 
clearly  admissible  upon  the  general  doctrine  of  evidence  in  cases  of 
conspiracy  and  fraud,  where  other  acts  in  furtherance  of  the  same 
general  fraudulent  design  are  admissible,  first,  to  establish  the  fact 
that  there  is  such  a  conspiracy  and  fraud ;  and,  secondly,  to  repel 
the  suggestion  that  the  acts  might  be  fairly  attributed  to  accident, 
mistake,  or  innocent  rashness  or  negligence.  In  most  cases  of  con- 
spiracy and  fraud,  the  question  of  intent  or  purpose  or  design  in 
the  act  done  whether  innocent  or  illegal  whether  honest  or  fraudu- 
lent, rarely  admits  of  direct  and  positive  proof;  but  it  is  to 
be  deduced  from  various  circumstances  of  more  or  less  stringency  and 
often  occurring,  not  merely  between  the  same  parties,  but  between  the 
party  charged  with  the  conspiracy  or  fraud  and  third  persons.  And 
in  all  cases  where  the  guilt  of  the  party  depends  upon  the  intent,  pur- 
pose, or  design  with  which  the  act  was  done,  or  upon  his  guilty  knowl- 

mere   circumstances    of    the    transaction    it-  circumstances    which    show    their    minds    to 

self  would  furnish,  it  would  be  impossible  he   free    from   that   gruilt." 

to   ascertain    whether    they   uttered    it   with  Compare    the    authorities    cited    in     \V., 

a    guilty    knowledge    of    its    having    been  §§  324-326. 

forged,    or    whether    it    was    uttered    under 


50  CIRCUMSTANTIAL    EVIDENCE.  No.  45. 

edge  thereof,  I  understand  it  to  be  a  general  rule  that  collateral  facts 
may  be  examined  into,  in  which  he  bore  a  part,  for  the  purpose  of 
establishing  such  guilty  intent,  design,  purpose,  or  knowledge.  Thus, 
in  a  prosecution  for  uttering  a  bank  note,  or  bill  of  exchange,  or  prom- 
issory note,  with  knowledge  of  its  being  forged,  proof,  that  the 
prisoner  had  uttered  other  forged  notes  or  bills,  whether  of  the  same  or 
of  a  different  kind,  or  that  he  had  other  forged  notes  or  bills  in  his 
possession,  is  clearly  admissible  as  showing,  that  he  knew  the  note  or 
bill  in  question  to  be  forged.  The  same  doctrine  is  applied  to  a  prose- 
cution for  uttering  counterfeit  money,  where  the  fact  of  having  in  his 
possession  other  counterfeit  money,  or  having  uttered  other  counterfeit 
money,  is  proper  proof  against  the  prisoner  to  show  his  guilty  knowl- 
edge. Many  other  cases  may  be  easily  put,  involving  the  same  con- 
siderations. Thus,  upon  indictment  for  receiving  stolen  goods,  evidence 
is  admissible  that  the  prisoner  had  received,  at  various  other  times, 
different  parcels  of  goods,  which  had  been  stolen  from  the  same  per- 
sons, in  proof  of  the  guilty  knowledge  of  the  prisoner.  In  short, 
wherever  the  intent  or  guilty  knowledge  of  a  party  is  a  material  in- 
gredient in  the  issue  of  a  case,  these  collateral  facts,  tending  to  estab- 
lish such  intent  or  knowledge,  are  proper  evidence." 


BLAKE  V.  ASSURANCE  CO.  (1878). 

L.  R.  4  C.  P.  D.  94,  14  Cox  Cr.  C.  254. 

Action  to   recover  money  obtained  by  the   fraud  of  one   Howard, 
the  defendant's  agent,  in  offering  to  loan  money  on  insurance  policies. 
The  evidence  of  several  other  persons  from  whom  money  had 
*  been    obtained    under    similar    circumstances    was    tendered    on 

behalf  of  the  plaintiff  to  prove  a  system  of  fraud ;  that  Howard  was  a 
secret  agent  of  the  defendants,  and  that  they  had  obtained  the  money 
paid  to  them  by  the  plaintiff  through  the  fraud  of  Howard  committed 
for  them  and  with  their  knowledge.  This  evidence  was  objected  to, 
by  counsel  for  the  defendants,  but  the  learned  judge  admitted  it.  The 
substance  of  it  was  that  advertisements  signed  either  by  Howard,  Card, 
Wood,  Rogers,  Preston,  Seymour,  Holland,  or  some  other  name,  and 
often  expressed  in  the  identical  words  of  the  advertisement  seen  by  the 
plaintiff,  appeared  offering  an  advance  of  money ;  that  the  witness 
placed  himself  in  correspondence  with  the  advertisers,  insured  his  life 
in  the  office  of  the  defendants,  and  paid  them  a  premium,  which  they 
divided  with  the  person  who  had  offered  the  loan ;  that  unreasonable 
requisitions  for  further  securities  were  made  and  the  loan  never  ad- 
vanced ;  that  the  policies  were  not  renewed  by  the  insurer ;  that  they 
would  not  have  been  paid  had  they  fallen  in ;  that  the  names  of  the 
advertisers  were  all  aliases  of  a  man  called  "Wood,"  who  was  con- 
stantly for  hours  together,  and,  week  after  week  for  years  had  been. 


No.  46.      CONDUCT,    TO    EVIDENCE    KNOWLEDGE,    INTENT,  ETC.  51 

in  close  communication  with  the  managing  director  and  secretary  and 
sometimes  other  directors  of  the  company. 

Grove,  J. :  "When  the  question  is  whether  an  act  was  or  was  not 
fraudulent,  acts  of  a  similar  kind  are  given  in  evidence  to  show  in- 
tention. I  remember  in  a  housebreaking  case  in  which  I  was  counsel, 
a  man  was  found  under  suspicious  circumstances  in  a  bedroom ;  it 
was  set  up  that  he  was  there  courting  the  servant ;  to  show  a  guilty 
intention,  Erie,  C.  J.,  admitted  evidence  of  the  fact  that  he  was  seen 
in  the  house  a  week  before  under  circumstances  equally  suspicious  and 
which  rebutted  the  idea  that  he  was  there  for  the  purpose  of  courting. 
...  To  take  the  common  instance  of  fraud  committed  by  means  of 
begging  letters.  If  a  single  letter  to  one  individual  only  were  proved, 
the  evidence  would  probably  be  insufficient  for  a  conviction ;  but  the 
particular  transaction  is  shown  to  be  a  guilty  one  by  proving  that  the 
person  charged  has  done  the  same  thing  twenty  times  before,  and  that 
in  each  case  he  has  told  false  stories  and  given  fictitious  names.  Then 
is  there  any  rule  of  law  to  exclude  this  evidence?  I  am  of  opinion 
that  there  is  not.  Where  the  act  itself  does  not  per  se  show  its  nature, 
the  law  permits  other  acts  to  be  given  in  evidence  for  the  purpose  of 
showing  the  nature  of  the  particular  act ;  as,  for  instance,  in  cases  of 
uttering  counterfeit  coin,  even  in  some  cases  of  murder,  and  generally 
wherever  it  is  necessary  to  show  the  intent  with  which  the  act  was 
done.  .  .  .  [So  in  this  case]  if  you  show  similar  shams,  carried  out 
under  the  same  false  name,  and  that  the  defendants  are  the  people 
who  put  the  money  in  their  pocket  in  each  case,  the  difficulty  arising 
from  any  possibility  of  mistake  in  the  case  is  removed,  and  the  jury 
may  reasonably  be  called  upon  to  infer  that  the  defendants  intended 
to  pocket  the  money  of  the  plaintiff  in  the  particular  case." 

LiNDLEY,  J. :  "I  agree  that  in  order  to  prove  that  A  has  committed 
a  fraud  on  B,  it  is  neither  sufficient  nor  even  relevant  to  prove  that  A 
committed  fraud  upon  C,  D,  and  E.  Stopping  there,  I  admit  that  prop- 
osition. But  let  it  be  shown  that  the  fraud  on  B  is  one  of  a  class  of 
other  transactions  having  common  features,  then  I  disagree  altogether 
with  that  proposition.  .  .  .  The  answer  to  the  objection  that  evidence 
of  frauds  on  other  persons  cannot  be  admitted  is  that  this  transaction 
is  one  of  a  class,  that  there  are  features  in  common,  the  features  in 
common  being  a  false  pretense  and  a  knowledge  of  that  false  pretense 
on  the  part  of  the  defendant  company ;  and  the  moment  that  is  shown 
the  plaintiff's  case  is  established."-^ 

21 — 1878,    Coleridge,    L.     C.    J.,    in    the  ine,  supremely  ridiculous;  because  it  is  ad- 
same    case:       "In    any    but      an       English  mitted  that  it  is  most  cogent  and  material 
court,  and  to  any  one  but  an   English  law-  to  the  plaintiff's  claim." 
yer,   the  controversy  whether   this  evidence  Compare   the   authorities  cited  in    W.,   §§ 
is  admissible   or   not,   would  seem,   I   imag-  340,  341. 


52  CIRCUMSTANTIAL    EVIDENCE.  No.  47. 

STATE  V.  LAPAGE    (1876). 

57  N.  H.  245. 

Murder  in  October,  1875,  in  attempting  rape  on  Josie  Langmaid. 
The  prosecution  offered  to  show  that  the  accused  had  committed  a  rape 
on  JuHenne  Rousse,  in  St.  Beatrice,  Canada,  in  June,  1871,  at  a 
*•  deserted  rural  spot  similar  to  the  one  at  which  the  present  mur- 
der was  committed.  The  exception  to  the  admission  of  this  evidence 
was  sustained.  Mr.  Clark,  Attorney-General,  arguing:  "Suppose  the 
defendant  were  tried  for  breaking  and  entering  the  store  at  the  north 
end  of  Elm  Street  in  Manchester — the  most  northern  of  all  the  stores 
on  that  street — with  intent  to  steal ;  suppose  it  were  proved  that  he 
broke  and  entered  that  store ;  that  he  was  arrested  as  soon  as  he  en- 
tered it,  and  the  only  question  was  whether  he  intended  to  steal ; 
suppose  there  were  one  hundred  other  stores  on  that  street,  and  he  had 
broken  and  entered  every  one  of  them,  and  stolen  something  in  every 
one  of  them,  beginning  at  the  south  end  of  the  street  and  taking  the 
stores  in  succession,  on  his  burglarious  march  from  one  end  of  the  street 
to  the  other ;  suppose  he  did  all  this  in  one  night,  and  was  completing 
his  night's  work  when  arrested ;  on  the  question  of  his  intent  in 
entering  the  one  hundred  and  first  store,  would  any  one  think  of  ob- 
jecting to  evidence  of  his  one  hundred  larcenies  in  the  other  one 
hundred  stores?  His  robbing  one  hundred  stores  would  tend  to  show 
that  he  intended  to  rob  the  one  hundred  and  first,  just  as  his  passing 
counterfeit  money  in  the  one  hundred  would  tend  to  show  that  he 
intended  to  pass  counterfeit  money  found  in  his  possession  in  the  one 
hundred  and  first.  There  would  be  no  difference  between  his  presence 
in  the  one  hundred  and  first  store,  and  his  having -counterfeit  money 
in  his  pocket  in  that  store,  that  would,  on  the  question  of  intent,  affect 
the  admissibility  of  the  evidence  of  what  he  had  done  in  the  other 
hundred  stores.  Suppose,  instead  of  robbing  stores,  he  had  robbed 
persons,  going  from  one  end  of  the  street  to  the  other,  and  knocking 
down  and  robbing  one  hundred  men,  one  after  the  other,  and  not 
touching  a  single  woman;  suppose  when  he  had  knocked  down  the 
one  hundred  and  first  man,  and  before  he  had  had  time  to  rob  him, 
he  had  been  arrested,  and  the  question  were  whether  he  intended  to 
rob  him, — whether  his  last  offence  were  an  attempt  to  rob,  or  a  mere 
assault,  or  an  assault  with  intent  to  kill;  would  anybody  suppose  his 
robbing  the  other  hundred  men,  after  he  knocked  them  down,  was 
no  evidence  of  the  intent  with  which  he  knocked  down  number  one 
hundred  and  one?  Suppose  the  one  hundred  and  one  persons  whom 
he  assaulted  were  women ;  suppose  he  touched  no  man ;  suppose  he 
had  unsuccessfully  attempted  to  ravish  one  hundred  of  them,  and 
were  arrested  at  the  instant  of  his  knocking  down  the  one  hundred 
and  first,  and  the  question  were  whether  his  last  assault  were  a  mere 
assault,  or  an  assault  with  intent  to  commit  a  robbery,  or  an  assault 


No.  47.     CONDUCT,    TO    EVIDENCE    KNOWLEDGE,    INTENT,  ETC.  53 

with  intent  to  commit  a  rape;  suppose  the  last  woman  assaulted 
should  die  of  her  injuries,  and  the  defendant  were  indicted  for  her 
murder;  .  .  .  how  would  you  expect,  if  you  were  the  prosecuting 
officers,  to  find  any  better  evidence  of  the  defendant's  intent  than  his 
attempts  upon  the  other  one  hundred  women?  ...  If  a  ship-master 
lands  in  Congo,  obtains  a  cargo  of  blacks,  and  carries  them  to  Cuba, 
and  four  years  and  four  months  afterwards  he  is  found  at  another 
place  on  the  African  coast,  as  far  from  Congo  as  Pembroke  Academy 
is  from  St.  Beatrice,  with  a  hundred  blacks  in  his  possession, — would 
anybody  think  that  his  proved  intent  on  the  former  occasion  had,  as  a 
matter  of  fact,  no  tendency  to  show  what  he  intended  to  do  on  the 
latter  occasion?  .  .  .  No  man  on  earth  would  refuse  to  hear  it,  or 
to  consider  it,  unless  he  were  bound  by  some  arbitrary  and  irrational 
rule  overriding  his  understanding,  and  dictating  a  course  at  war  with 
his  common  sense.  ...  It  is  the  spontaneous  and  irreversible  judg- 
ment of  every  grade  of  intellect  that  has  appeared,  or  is  likely  to 
appear,  in  this  state  of  existence.  It  is  an  involuntary  and  unavoid- 
able perception  of  the  inherent  and  self-evident  relations  of  conduct 
and  intention;  a  mental  revelation  as  natural  as  memory,  and  as 
trustworthy  and  unanswerable  as  consciousness." 

Mr.  Norris,  arguing  for  the  defence:  "Making  no  point  of  remote- 
ness in  time  or  space,  let  us  see  how  well  this  evidence  will  bear 
analyzing.  Premise  to  be  proved :  he  committed  a  rape,  in  no  way, 
except  in  kind,  connected  with  this  crime.  Inference:  a  general  dis- 
position to  commit  this  kind  of  offence.  Next  premise:  this  general 
disposition  in  him.  Inference:  he  committed  this  particular  offence. 
...  It  may  be  tried  by  the  common  test  of  the  validity  of  arguments. 
Some  men  who  commit  a  single  crime  have,  or  thereby  acquire,  a 
tendency  to  commit  the  same  kind  of  crimes ;  if  this  man  committed 
the  rape,  he  might  therefore  have  or  thereby  acquire  a  tendency  to 
commit  other  rapes;  if  he  had  or  so  acquired  such  a  tendency,  and  if 
another  rape  was  committed  within  his  reach,  he  might  therefore  be 
more  likely  to  be  guilty;  if  more  likely  to  be  guilty  of  rape,  and  if 
there  was  a  murder  committed  in  perpetrating  or  attempting  to  per- 
petrate rape,  he  might  therefore  be  more  likely  to  be  guilty  of  this 
rape,  and  hence  of  this  murder ;  a  sort  of  an  ex-parte  conviction  of  a 
single  rape,  from  which  the  jury  are  to  find  a  general  disposition  to 
that  kind  of  crimes,  in  order  to  help  them  out  in  presuming  the  com- 
mission of  another  rape  as  a  motive  or  occasion  of  the  murder.  We 
can  find  nothing  like  it  in  the  books." 

Ladd,  J.:  "It  is  argued  on  behalf  of  the  State  (if  I  have  not 
wholly  misapprehended  the  drift  of  the  argument)  that  the  evidence 
was  admitted  because,  as  matter  of  fact,  its  natural  tendency  was  to 
produce  conviction  in  the  mind  that  the  prisoner  committed  rape  upon 
his  victim  at  the  time  he  took  her  life.  .  .  .  T  shall  not  undertake  to 
deny  this.    If  I  know  a  man  has  broken  into  my  house  and  stolen 


54  CIRCUMSTANTIAL    EVIDENCE.  No.  47. 

my  goods,  I  am  for  that  reason  more  ready  to  believe  him  guiltyi,of 
breaking  into  my  neighbor's  house  and  committing  the  same  crime 
there.  We  do  not  trust  our  property  with  a  notorious  thief.  We  can- 
not help  suspecting  a  man  of  evil  life  and  infamous  character  sooner 
than  one  who  is  known  to  be  free  from  every  taint  of  dishonesty  or 
crime.  We  naturally  recoil  with  fear  and  loathing  from  a  known 
murderer,  and  watch  his  conduct  as  we  would  the  motions  of  a  beast 
of  prey.  When  the  community  is  startled  by  the  commission  of  some 
great  crime,  our  first  search  for  the  perpetrator  is  naturally  directed, 
not  among  those  who  have  hitherto  lived  blameless  lives,  but  among 
those  whose  conduct  has  been  such  as  to  create  the  belief  that  they 
have  the  depravity  of  heart  to  do  the  deed.  This  is  human  nature — 
the  teaching  of  human  experience.  If  it  were  the  law,  that  every- 
thing which  has  a  natural  tendency  to  lead  the  mind  towards  a  con- 
clusion that  a  person  charged  with  crime  is  guilty  must  be  admitted 
in  evidence  against  him  on  the  trial  of  that  charge,  the  argument 
for  the  State  would  doubtless  be  hard  to  answer.  If  I  know  a  man 
has  once  been  false,  I  cannot  after  that  believe  in  his  truth  as  I  did 
before.  If  I  know  he  has  committed  the  crime  of  perjury  once,  I 
more  readily  believe  he  will  commit  the  same  awful  crime  again,  and 
I  cannot  accord  the  same  trust  and  confidence  to  his  statements  under 
oath  that  I  otherwise  should.  .  .  .  Suppose  the  general  character  of 
one  charged  with  crime  is  infamous  and  degraded  to  the  last  degree; 
that  his  life  has  been  nothing  but  a  succession  of  crimes  of  the  most 
atrocious  and  revolting  sort :  does  not  the  knowledge  of  all  this  inev- 
itably carry  the  mind  in  the  direction  of  a  conclusion  that  he  has 
added  the  particular  crime  for  which  he  is  being  tried  to  the  list  of 
those  that  have  gone  before?  Why,  then,  should  not  the  prosecutor 
be  permitted  to  show  facts  which  tend  so  naturally  to  produce  a 
conviction  of  his  guilt?  The  answer  to  all  these  questions  is  plain 
and  decisive :    The  law  is  otherwise." 

CusHiNG,  C.  J.:  "I  think  we  may  assume,  in  the  outset,  that  it 
is  not  the  quality  of  an  action,  as  good  or  bad,  as  unlawful  or  lawful, 
as  criminal  or  otherwise,  which  is  to  determine  its  relevancy.  I  take 
it  to  be  generally  true,  that  any  act  of  the  prisoner  may  be  put  in 
evidence  against  him,  provided  it  has  any  logical  and  legal  tendency 
to  prove  any  matter  which  is  in  issue  between  him  and  the  State,  not- 
withstanding it  might  have  an  indirect  bearing,  which  in  strictness 
it  ought  not  to  have,  upon  some  other  matter  in  issue. 

"I  think  we  may  state  the  law  in  the  following  propositions:  (i)  It 
is  not  permitted  to  the  prosecution  to  attack  the  character  of  the  pris- 
oner, unless  he  first  puts  that  in  issue  by  offering  evidence  of  his 
good  character.  (2)  It  is  not  permitted  to  show  the  defendant's  bad 
character  by  showing  particular  acts.  (3)  It  is  not  permitted  to 
show  in  the  prisoner  a  tendency  or  disposition  to  commit  the  crime 
with  which  he  is  charged.      (4)     It  is  not  permitted  to  give  in  evi- 


No.  47.      CONDUCT,    TO    EVIDENCE    KNOWLEDGE,    INTENT,  ETC.  55 

dence  other  crimes  of  the  prisoner,  unless  they  are  so  connected  by 
circumstances  with  the  particular  crime  in  issue  as  that  the  proof  of 
one  fact  with  its  circumstances  has  some  bearing  upon  the  issue  on 
trial  other  than  such  as  is  expressed  in  the  foregoing  three  proposi- 
tions. .  .  .  The  cases  cited  by  counsel  for  the  government  admit  of  being 
classified  into  several  distinct  groups.  In  the  first  place  is  the  class 
of  cases  in  which  other  offences  are  shown  for  the  purpose  of  proving 
guilty  knowledge.  To  this  class  belong  those  cases  in  which,  in  the 
trial  of  indictments  for  uttering  forged  bank-notes,  or  counterfeit  coin, 
the  proof  of  other  offences  of  the  same  kind  is  admitted.  It  might 
well  happen  that  a  person  might  have  in  his  possession  a  single  coun- 
terfeit bill  or  coin  without  knowing  it  to  be  such ;  but  he  would  be 
much  less  likely  to  do  so  twice,  and  every  repetition  of  such  an  act 
would  increase  the  probability  that  he  knew  that  the  bills  or  coins 
were  counterfeit.  .  .  .  Another  class  "of  cases  consists  of  those  in  which 
it  becomes  necessary  to  show  that  the  act  for  which  the  prisoner  was 
indicted  was  not  accidental, — e.  g.  where  the  prisoner  had  shot  the 
same  person  twice  within  a  short  time,  or  where  the  same  person  had 
fired  a  rick  of  grain  twice  or  where  several  deaths  by  poison  had  taken 
place  in  the  same  family,  or  where  children  of  the  same  mother  had 
mysteriously  died.  In  such  cases  it  might  well  happen  that  a  man 
should  shoot  another  accidentally,  but  that  he  should  do  it  twice  within 
a  short  time  would  be  very  unlikely.  So,  it  might  easily  happen  that 
a  man  using  a  gun  might  fire  a  rick  of  barley  once  by  accident,  but 
that  he  should  do  it  several  times  in  succession  would  be  very  im- 
probable. So,  a  person  might  die  of  accidental  poisoning,  but  that 
several  persons  should  so  die  in  the  same  family  at  different  times 
would  be  very  unlikely.  So,  that  a  child  should  be  suffocated  in  bed 
by  its  mother  might  happen  once,  but  several  similar  deaths  in  the 
same  family  could  not  reasonably  be  accounted  for  as  accidents.  So, 
in  the  case  of  embezzlement  effected  by  means  of  false  entries,  a 
single  false  entry  might  be  accidentally  made;  but  the  probability  of 
accident  would  diminish  at  least  as  fast  as  the  instances  increased. 
.  .  .  There  is  another  class  of  cases  in  which  proof  of  the  commission 
of  one  crime  tends  to  show  a  motive  for  the  commission  of  the  crime 
with  which  the  prisoner  is  charged.  .  .  .  Another  class  of  cases  consists 
of  those  in  which  the  evidence  tends  to  show  a  general  plan  or  con- 
spiracy, one  act  of  which  was  that  which  is  in  issue.  ...  In  the  case 
of  sexual  crimes,  as  fornication  and  adultery,  where  the  object  is  to 
prove  that  the  respondent  has  committed  a  crime  with  a  particular  in- 
dividual, evidence  tending  to  show  previous  acts  of  indecent  famil- 
iarity would  have  a  tendency  to  prove  the  breaking  down  and  re- 
moval of  the  safeguards  of  self-respect  and  modesty,  and  the  grad- 
ual advance  step  by  step,  to  the  crime.  ...  It  should  also  be  re- 
marked that  this  being  a  matter  of  judgment,  it  is  quite  likely  that 
Courts    would    not    always    agree,    and    that    some    Courts    might    see 


56  CIRCUMSTANTIAL    EVIDENCE.  No.  47. 

a  logical  connection  where  others  could  not.  But,  however  extreme 
the  case  may  be,  I  think  it  will  be  found  that  the  Courts  have 
always  professed  to  put  the  admission  of  the  testimony  on  the 
ground  that  there  was  some  logical  connection  between  the  crime 
proposed  to  be  proved  other  than  the  tendency  to  commit  one  crime 
as  manifested  by  the  tendency  to  commit  the  other.  In  the  case 
under  consideration,  I  cannot  see  any  such  logical  connection,  be- 
tween the  commission  of  the  rape  upon  Julienne  Rousse  and  the 
murder  of  Josephine  Langmaid,  as  the  law  requires.  I  am  unable 
to  see  any  connection  by  which  from  the  first  crime  can  be  inferred 
that  the  respondent  was  attempting  the  commission  of  a  rape  when  he 
committed  the  murder,  if  he  did  it,  other  than  such  inference  as  I 
understand   the   law   expressly  to   exclude." 

Smith,  J.:  "Proof  that  he  committed  a  rape  in  Canada,  four 
years  previously,  upon  Julienne  Rousse,  shows  what?  Not  that  he 
then  had  any  design  or  intent  to  perpetrate  a  rape  four  years  after- 
wards upon  another  woman  whom  he  had  never  seen  or  heard 
of,  or  in  a  place  two  hundred  miles  distant  where  he  had  never 
been;  not  that  he  had  then  formed  a  design  to  rape  and  murder 
women  whenever  he  might  have  opportunity ;  not  that  he  had  ever 
before  or  since  committed  that  crime, — but  that  the  defendant  had 
a  disposition  to  commit  the  crime  of  rape  four  years  previously.  No 
one  will  pretend  that  evidence  that  the  prisoner  had  committed 
another  murder,  in  Canada,  or  Texas,  or  Europe,  could  be  shown 
on  this  trial.  One  cannot  be  convicted  of  murder,  by  showing 
that  he  had  at  some  time  and  somewhere  else  committed  another  mur- 
der; or  of  larceny,  by  showing  that  he  has  committed  the  crime  before, 
and  therefore  has  an  evil  disposition  inclining  him  towards  that  par- 
ticular crime."^ 


COMMONWEALTH   v.   ROBINSON    (1888). 

146  Mass.  5/1,  16  N.  E.  452. 

Indictment   for  the   murder  of   Prince  Arthur   Freeman  by  poison- 
ing.     At  the  trial,  before  Field  and  Knowlton,  JJ.,  there  was  evidence 

tending  to  prove  the  following  facts: 
*^  In   February,   1885,   Freeman  occupied  a  tenement   in   South 

Boston  with  his  wife,  Annie  Freeman,  who  was  a  sister  of  the  de- 
fendant, and  their  two  children.  On  February  20,  1885,  the  defendant 
called  upon  her  sister,  staying  but  a  short  time,  and  on  February  23, 
1885,  again  went  to  her  sister's  house  to  take  care  of  her,  and  there 
stayed  until  Mrs.  Freeman  died  on  February  26,  1885,  after  an  illness 
of  about  three  weeks.  The  children  had  been  taken  to  the  defendant's 
house  in  Cambridge  on  February  22,  and,  immediately  after  the  death  of 
his  wife,  Freeman  went  to  live  with  the  defendant,  and  there  remained, 

I — Compare  the  authorities  cited  in  W.,    §  357. 


No.  48.      CONDUCT,    TO    EVIDENCE    KNOWLEDGE,    INTENT,   ETC.  57 

with  his  children.  The  baby  died  in  April,  1885.  ^^  ^^^^  Freeman  had 
taken  out  a  certificate  of  insurance  for  $2,000  in  the  United  Order  of 
Pilgrim  Fathers,  his  wife  being  the  beneficiary  named  in  the  certificate, 
and  after  her  death,  on  or  about  May  13,  1885,  appointed  the  de- 
fendant his  beneficiary  under  the  certificate,  as  authorized  by  the  by- 
laws of  the  order.  Freeman,  while  still  an  inmate  of  the  defendant's 
family,  died,  on  June  2.J,  1885,  after  an  illness  of  about  six  days,  from 
the  effects  of  arsenic  administered  to  him  by  the  defendant.  On  July 
23,  1886,  the  boy,  Thomas  Arthur,  died.  From  a  period  prior  to  1885, 
the  defendant  had  been  indebted  to  different  persons  to  the  amount 
of  six  or  seven  hundred  dollars,  which  she  was  unable  to  pay,  and  for 
which  she  had  been  hard  pressed  by  her  creditors,  and  this  indebted- 
ness she  paid  off  out  of  Freeman's  insurance,  which  she  duly  received 
from  the  order  on  September  23,  1885.  (i)  The  prosecution  offered, 
for  the  sole  purpose  of  establishing  the  defendant's  motive  in  killing 
her  brother-in-law,  to  prove  that  prior  to  the  death  of  Annie  Freeman 
the  defendant  had  formed  the  plan  and  intention  of  securing  to  her  own 
use  the  $2,000  of  insurance,  and  as  a  means  of  accomplishing  this 
result,  and  as  a  part  of  the  scheme,  determined  first  to  kill  her,  then  to 
induce  Freeman  to  make  her  the  beneficiary  under  the  certificate,  and 
then  to  kill  him.  Mr.  Stevens,  District  Attorney,  stated  the  object  of 
the  offer  as  follows :  Field,  J. :  "Do  you  offer  it  for  the  purpose  of 
rendering  it  more  probable  that  she  committed  the  murder  charged,  or 
for  the  purpose  of  showing  the  intent  of  the  murder  with  which  she  is 
charged,  six  months  before  committing;  for  the  purpose  of  showing  the 
same  motive  operating?"  Mr.  Stevens:  "I  put  it  as  the  strongest  piece 
of  evidence  which  has  a  tendency  in  this  case  in  showing  what  was  the 
motive."  .  .  .  Field,  J. :  "Does  the  force  of  the  evidence  stop  with  prov- 
ing that  she  formed  the  intent  of  killing  her  brother-in-law  before  her 
sister  died?"  Mr.  Stevens:  "Certainly."  .  .  .  Field,  J.:  "But  the  fact 
that  she  killed  her  sister,  is  that  offered  for  any  purpose  except  to  show 
that  she  had  the  intent  of  killing  her  brother-in-law  at  that  time?  Is  it 
offered  to  show  if  she  killed  her  sister,  she  killed  her  brother-in-law?" 
Mr.  Stevens:    "Not  in  the  slightest  degree." 

The  Court,  by  Field,  J.,  admitted  this  evidence,  in  the  following 
terms :  "If  evidence,  direct  or  circumstantial,  is  offered  and  admitted 
tending  to  show  that  this  defendant  knew  before  her  sister's  death  of  the 
existence  of  the  insurance,  and  that  it  could  be  transferred  on  the  death 
of  her  sister  to  herself  and  made  payable  to  herself  on  the  death  of  her 
brother-in-law ;  and  that  she,  before  the  sister's  death,  had  formed  in 
her  own  mind  a  plan  or  intention  to  obtain  this  insurance  for  her  own 
benefit,  and  this  plan  or  intention  continued  to  exist  and  be  operative  up 
to  the  time  of  the  death  of  her  brother-in-law;  then  we  are  of  the  opin- 
ion that  evidence  may  be  offered  that  her  sister  died  of  poison  and  that 
this  defendant  administered  it  as  a  part  of  the  method  employed  by  her 
to  carry  this  plan  or  intention  into  effect,  in  connection  with  evidence 


58  CIRCUMSTANTIAL    EVIDENCE.  No.  48. 

that  she  administered  poison  to  her  brother-in-law  as  another  part  of 
the  same  plan  or  intention." 

(2)  The  prosecution  afterwards  offered  further  to  prove  that  after 
the  death  of  her  brother-in-law  and  her  receipt  of  the  insurance  money 
in  her  own  right,  as  beneficiary,  she  poisoned  the  remaining  child, 
Thomas  Arthur,  in  July,  1886.  This  offer  was  stated  and  opposed  in 
the  following  terms:  Mr.  Stevens:  "The  government  has  already  of- 
fered evidence  that  this  money  was  received  for  the  purpose  of  taking 
care  of  Thomas  Arthur  Freeman,  and  the  position  of  the  government  is 
that  the  motive  which  induced  this  woman  to  kill  Prince  Arthur  Freeman 
was  for  the  purpose  of  getting  two  thousand  dollars  to  use  for  her  own 
benefit.  .  .  .  Now,  this  testimony  of  the  death  of  Thomas  relates  back 
and  explains  more  fully  the  real  motive  and  the  strength  of  the  motive 
which  induced  her  to  kill  Prince  Arthur.  It  shows  that  she  did  not  re- 
ceive the  money  for  the  purpose  of  using  it  to  take  care  of  Thomas  Arthur, 
but  has  a  tendency  to  show  that  the  real  purpose  and  the  real  motive 
was,  not  the  alleged  motive  by  which  she  had  received  it,  for  the  purpose 
of  taking  care  of  Thomas  Arthur,  but  was  for  her  own  personal  benefit." 
.  .  .  Field,  J. :  "Does  it  not  amount  to  this,  that  you  show  she  killed 
Thomas  Arthur  for  the  purpose  of  getting  rid  of  the  burden  of  support- 
ing him?"  Mr.  Stevens:  "Not  entirely.  I  do  not  think  it  would  be  ad- 
missible simply  for  that  purpose.  I  do  not  think  it  is  admissible  except 
on  the  ground  that  it  relates  back  to  the  original  motive."  .  .  .  Field,  J. : 
"Suppose  you  prove  that  she  wanted  the  money  for  the  purposes  of  the 
expenses  of  the  family  generally,  then  can  the  death  of  any.  mem- 
ber of  her  family  at  any  subsequent  time  be  shown  in  order  to  relate 
back  and  help  to  prove  the  original  motive?"  .  .  .  Mr.  Stevens:  "I 
should  say  no,  on  general  principles,  unless  there  was  some  particular 
circumstance.  It  seems  to  me  that  that  differs  from  this  case."  .  .  . 
Field,  J. :  "You  know  the  rule  of  law  is,  that  you  shall  not  submit  the 
evidence  of  one  crime  to  prove  another.  The  general  rule  of  law  is  un- 
doubtedly against  it.  If  you  are  indicted  for  assaulting  A,  it  is  not  com- 
petent to  prove  that  you  have  assaulted  B,  C  and  D."  Mr.  Stevens: 
"Because  ordinarily  it  has  not  any  natural  tendency  to  satisfy  the  reason- 
able mind  that  the  prisoner  committed  that  crime."  Field,  J. :  "It  has 
some  tendency  to  show  that  he  is  a  man  who  is  habitually  assaulting  peo- 
ple." Mr.  Stevens:  "I  tried  to  argue, — but  I  did  not  argue  successfully, 
— in  the  former  trial,  that  under  certain  combinations  I  thought  that 
was  admissible,  but  the  Court  overruled  it,  and  of  course  I  cannot  argue 
that  now."  Field,  J. :  "Suppose  you  are  indicted  for  cheating  A  in  a 
horse  trade,  the  fact  that  you  have  cheated  twenty-seven  other  persons 
within  three  months,  is,  independently  of  legal  rules,  some  evidence  to 
the  point  that  you  have  cheated  the  last  person ;  but  yet,  it  is  not  admis- 
sible if  there  is  no  connection  between  the  different  acts."  Mr.  Stevens: 
"I  don't  know  about  that;  but  the  Court  says  it  is  not.  But  if  I  pass  a 
piece  of  counterfeit  money,  and  if  it  is  a  fact  that  I  had  another  piece  of 


No.  in.     CONDUCT,    TO    EVIDENCE    KNOWLEDGE,    INTENT,  ETC.  59 

counterfeit  money  in  my  possession,  that  would  be  evidence  against  me. 
I  do  not  think  the  rules  of  law  are  always  consistent."  Field,  J. :  "That 
is  an  exception,  and  it  goes  simply  to  the  point  of  whether  you  knew  it 
was  counterfeit.  The  ground  is  that  a  man  may  have  one  counterfeit 
half-dollar  and  not  know  it;  but  if  he  has  a  good  many  in  his  possession 
and  on  successive  days,  it  is  evidence  that  he  knows  that  the  money  is 
counterfeit."  Mr.  Stevens:  "Where  a  distinct  crime  is  committed,  we 
do  not  put  it  in  that  position.  But  does  it  not  have  a  natural  tendency, 
and  is  it  not  connected  circumstantially  with  the  principal  fact,  in  so  far 
as  it  tends  to  go  back  and  explain  the  motive  ?"  Field,  J. :  "Is  it  not 
more  reasonable,  on  general  principles,  that  if  there  be  any  evidence  that 
she  killed  the  son,  the  motive  to  do  that  was  formed  after  the  death  of 
the  father,  than  that  it  was  formed  before, — on  general  principles  ?  Is  it 
not  merely  collateral  as  connected  with  the  original  motive  ?"'  Mr. 
Stevens:  "I  do  not  think  it  is,  if  you  go  along  step  by  step."  .  .  .  Mr. 
Goodrich,  for  the  defence :  "It  is  admitted  that  there  was  no  contract  in 
writing,  there  was  no  trust  created  by  any  instrument,  but  she  simply 
acknowledged  that  she  had  the  care  and  the  charge  of  the  child  and  was 
to  take  care  of  the  child,  and  she  recognized  the  expense  of  it.  .  .  .  If 
evidence  of  the  death  of  Thomas  Arthur  Freeman  is  competent  in  this 
case,  it  is  because  that  death  was  a  part  of  the  original  scheme.  Now, 
if  the  original  scheme  was  to  get  possession  of  the  money,  then  to  make 
this  evidence  competent  it  must  appear  that  it  would  serve  that  end, — the 
scheme  of  getting  the  money.  Therefore  it  would  be  material  whether 
or  not  the  money  had  been  got  and  spent;  because  if  the  prisoner  had 
obtained  the  money  at  the  time  of  Thomas  Arthur  Freeman's  death,  and 
had  spent  it  and  it  was  gone,  then  some  other  motive  except  the  obtain- 
ing of  the  money  must  have  been  the  motive  for  Thomas  Arthur's  death. 
Now,  in  point  of  fact,  it  is  proper  for  me  to  say  that  the  money  had 
been  spent  and  was  gone;  and,  therefore,  her  only  object  and  motive  in 
committing  the  murder  of  Thomas  Arthur  Freeman  must  have  been  to 
get  rid  of  her  responsibility  of  taking  care  of  him."  .  .  .  The  justices 
went  out  for  consultation.  They  then  returned  and  said,  by  Field,  J. : 
"The  justices  have  considered  the  question  submitted  to  them  and  are 
divided  in  opinion.  The  result  is  that  in  a  capital  case,  where  the  point 
does  not  concern  the  general  administration  of  justice,  but  is  dependent 
upon  the  particular  facts  of  a  particular  case,  in  favorem  vitoc,  the  evi- 
dence must  be  excluded." 

In  the  Supreme  Court,  the  admission  of  the  first  part  of  the  evidence 
above  was  held  proper,  in  the  following  terms : 

C.  Allen,  J. :  "While  it  is  well  settled  in  this  Commonwealth  that 
on  the  trial  of  an  indictment  the  government  cannot  be  allowed  to  prove 
other  independent  crimes  for  the  purpose  of  showing  that  the  defendant 
is  wicked  enough  to  commit  the  crime  on  trial,  this  rule  does  not  ex- 
tend so  far  as  to  exclude  evidence  of  acts  or  crimes  which  are  shown 
to  have  been  committed  as  part  of  the  same  common  purpose  or  in 


60  CIRCUMSTANTIAL    EVIDENCE.  No.  48, 

pursuance  of  it.  In  such  cases  there  is  a  distinct  and  significant  proba- 
tive effect,  resulting  from  the  continuance  of  the  same  plan  or  scheme 
and  from  the  doing  of  other  acts  in  pursuance  thereof.  It  is  some- 
what of  the  nature  of  threats  or  declarations  of  intentions,  but  more 
especially  of  preparations  for  the  commission  of  the  crime  which  is 
the  subject  of  the  indictment.  If,  for  example,  it  could  be  shown  that 
a  defendant  had  formed  a  settled  purpose  to  obtain  certain  property 
which  could  only  be  got  by  doing  several  preliminary  things,  the  last 
of  v^hich  in  the  order  of  time  was  criminal,  the  government  might 
show,  on  his  trial  for  the  commission  of  that  last  criminal  act,  that  he 
had  formed  the  purpose  to  accomplish  the  result  of  obtaining  the  prop- 
perty,  and  that  he  had  done  all  of  the  preliminary  things  which  were 
necessary  to  that  end.  This  would  be  quite  plain  if  the  evidence  of 
the  purpose  were  direct  and  clear, — as,  if  a  letter  in  the  defendant's 
handwriting  should  be  discovered,  stating  in  terms  to  a  confederate  his 
purpose  to  obtain  the  property  by  the  doing  of  the  several  successive 
acts  the  last  of  which  was  the  criminal  act  on  trial.  In  such  case,  no 
one  would  question  that  proof  might  be  offered  that  the  defendant  had 
done  all  the  preliminary  acts  referred  to,  which  were  necessary  steps 
in  the  accomplishment  of  his  purpose.  But  such  purpose  may  also  be 
shown  by  circumstantial  evidence.  It  is,  indeed,  usually  the  case  that 
intentions,  plans,  purposes,  can  only  be  shown  in  this  way.  Express 
declarations  of  intention,  or  confessions,  are  comparatively  rare;  and 
therefore  all  the  circumstances  of  the  defendant's  situation,  conduct, 
speech,  silence,  motives  may  be  considered.  The  plan  itself,  and  the 
acts  done  in  pursuance  of  it,  may  all  be  proved  by  circumstantial  evi- 
dence, if  they  are  of  themselves  relevant  and  material  to  the  case  on 
trial.  In  such  a  case  it  makes  no  difference  whether  the  preliminary 
acts  are  criminal  or  not;  otherwise,  the  greater  the  criminal,  the 
greater  his  immunity.  Such  preliminary  acts  are  competent  because 
they  are  relevant  to  the  issue  on  trial;  and  the  fact  that  they  are 
criminal  does  not  render  them  irrelevant.  Suppose,  for  further  ex- 
ample, one  is  charged  with  breaking  a  bank,  and  there  is  evidence  that 
he  had  made  preliminary  examinations  from  a  neighboring  room ;  that 
his  occupation  of  such  room  was  accomplished  by  a  criminal  breaking 
and  entering  would  not  render  the  evidence  incompetent.  It  is  some- 
times said  that  such  evidence  may  be  introduced  where  the  several 
crimes  form  part  of  one  entire  transaction ;  but  it  is  perhaps  better  to 
say,  where  they  have  some  connection  with  each  other,  as  a  part  of  the 
same  plan  or  induced  by  the  same  motive."- 

2 — Brewer,    J.,    in    State    v.    Adams,    20  volume    of     competent     testimony     against 

Kan.     319     (1878):       "Whatever    testimony  him." 

tends  directly  to  show  the  defendant  guilty  Beatty,    C.   J.,    in   People  v.    Walters,  98 

of  the  crime  charged   is   competent,   though  Cal.     138,    141,    32    Pac.    864     (1893),    and 

it    also    tends    to    show    him    guilty    of    an-  People  v.  Tucker,  104  id.  440,  442,  38  Pac. 

other    and   distinct    offence.      A    party   can-  195:      "It  is   true  that  in    trying  a   person 

not    by    multiplying    crimes     diminish    the  charged    with    one   offence   it   is    ordinarily 


No.  49.  CONDUCT,    TO    EVIDENCE   INTENT,    MOTIVE,    ETC.  61 

HOLLINGHAM  v.  HEAD   (1858). 
4  C.  B.  N.  S.  388. 

Action  for  the  price  of  a  quantity  of  artificial  manure  sold  by  the 
plaintiff  to  the  defendant.  At  the  trial  before  Williams,  J.,  at  the  last 
Assizes  for  Sussex,  it  appeared  that  the  plaintiff,  who  represented 
himself  to  be  the  agent  of  a  company  styled  The  Sussex  Manure 
Company,  was  in  the  habit  of  traveling  about  to  the  different  market  towns 
to  sell  an  article  called  Rival  Guano ;  that  he  met  with  the  defendant,  who 
was  the  occupier  of  a  farm  in  the  county  of  Sussex,  adjacent  to  a  farm 
W'hich  had  formerly  been  in  the  occupation  of  the  plaintiff,  and  pre- 
vailed upon  him  to  purchase  a  quantity  of  this  guano;  and  that  it 
turned  out  to  be  altogether  worthless.  The  defence  set  up  was,  that 
the  article  had  been  purchased  by  the  plaintiff  subject  to  a  condition 
that  it  was  not  to  be  paid  for  unless  it  proved  equal  to  Peruvian  guano : 
and  it  was  proposed,  on  cross-examination,  to  ask  the  plaintiff  whether 
he  had  not  made  contracts  with  other  persons  for  the  sale  of  his 
Rival  Guano  upon  the  terms  that  the  purchasers  should  not  pay  for  it 
unless  it  turned  out  to  be  equal  to  Peruvian  guano.  The  learned  judge 
permitted  the  question  to  be  put,  for  the  purpose  of  testing  the  plain- 
tiff's credit.  The  defendant's  counsel  then  proposed  to  call  witnesses  to 
prove  that  the  plaintiff  had  made  contracts  with  other  persons  for  the 
sale  of  his  guano  upon  the  terms  suggested.  The  learned  judge  ruled 
that  this  evidence  was  not  admissible,  as  not  being  relevant  to  the 
issue,  and  res  inter  alios  acta. 

WiLLES,  J.:  "I  am  of  opinion  that  the  evidence  was  properly  disal- 
lowed as  not  being  relevant  to  the  issue.  It  is  not  easy  in  all  cases 
to  draw  the  line  and  to  define  with  accuracy  where  probability  ceases 
and  speculation  begins;  but  we  are  bound  to  lay  down  the  rule  to  the 
best  of  our  ability.  .  .  .  Now  it  appears  to  me  that  the  evidence  pro- 
posed to  be  given  in  this  case,  if  admitted,  would  not  have  shown  that 
it  was  more  probable  that  the  contract  was  subject  to  the  condition  in- 
sisted upon  by  the  defendant.  The  question  may  be  put  thus :  Does 
the  fact  of  a  person  having  once  or  many  times  in  his  life  done  a  par- 
ticular act  in  a  particular  way  make  it  more  probable  that  he  has  done 
the  same  thing  in  the  same  way  upon  another  and  different  occasion? 
To  admit  such  speculative  evidence  would  I  think  be  fraught  with 
great  danger.  ...  If  such  evidence  were  held  admissible  it  would  be 
difficult  to  say  that  the  defendant  might  not.   in  any  case  where  the 

inadmissible   to   offer   proof  of   another   and  the   minds   of  the   jurors    is   no   ground    for 

distinct    offence;    but    this    is    only    because  its    exclusion.  .   .   .   \\'hen    such    evidence    is 

the    proof    of    a    distinct    offence    has    ordi-  offered,    the    same    considerations    arise    a? 

narily  no  tendency  to  establish   the  offence  upon   the   offer   of  other   testimony:    Is  the 

charged.      But    whenever    the   case    is    such  evidence  relevant  and  competent?     Does  it 

that    proof    of    one    crime    tends    to    prove  tend   to  prove  any   fact  material   to  the   is- 

any    fact   material    in   the   trial   of   another,  sues?" 

such   proof  is  admissible;  and  the  fact  that  Compare    the    authorities   cited    in    W.,    S 

it  may  tend  to  prejudice  the   defendant   in  363. 


62  CIRCUMSTANTIAL    EVIDENCE.  No.  49. 

question  was  whether  or  not  there  had  been  a  sale  of  goods  on  credit, 
call  witnesses  to  prove  that  the  plaintiff  had  dealt  with  other  persons 
upon  a  certain  credit;  or  in  an  action  for  an  assault,  that  the  plaintiff 
might  not  give  evidence  of  former  assaults  committed  by  the  defendant 
upon  other  persons,  or  upon  other  persons  of  a  particular  class,  for  the 
purpose  of  showing  that  he  was  a  quarrelsome  individual  and  therefore 
that  it  was  highly  probable  that  the  particular  charge  of  assault  was 
well-founded.  The  extent  to  which  this  sort  of  thing  might  be  car- 
ried is  inconceivable."^ 


STATE  V.   KENT,   alias  PANCOAST    (1896). 

5  A^.  D.  316,  6/  N.   W.  1052. 

The  accused  was  charged  with  the  murder  of  his  second  wife,  Julia 
C.  Kent,  in  1894.  He  had  formerly  lived  in  Medina,  Ohio,  and  was 
cashier  of  a  bank  there,  in  1873,  when  his  first  wife  died  and  he 
left  for  other  regions;  the  alleged  motive  of  the  murder  was  his 
fear  that  the  second  wife  was  about  to  discover  the  facts  of  his  murder 
of  the  first  wife  twenty  years  before,  his  robbing  of  the  bank,  and  the 
falsity  of  his  present  name  and  pretensions;  proof  of  these  past  misdo- 
ings  was   received. 

Bartholomew,  J. :  "This  case  is  unusual  in  its  facts.  The  proof 
of  the  commission  of  the  crime  or  crimes  at  Medina,  Ohio,  would  not, 
as  we  view  it,  have  had  any  legal  tendency  to  furnish  a  motive  for  the 
murder  of  Julia  C.  Kent,  but  for  the  declared  state  of  mind,  according 
to  Swidensky's  testimony,  under  which  Kent  was  laboring.  It  was  the 
theory  of  the  State  that  Kent  believed  that  Mrs.  Kent  was  suspicious  of 
something;  that  he  was  haunted  with  a  fear  or  dread  that  she  might 
become  cognizant  of  certain  crimes  that  he  had  committed  in  Ohio; 
and  that  this  fear  was  the  motive  that  actuated  him  in  conspiring  for 
her  death.  Obviously,  this  theory  of  the  motive  would  be  greatly 
strengthened  by  proof  that  he  had  committed  the  specified  crimes  in 
Ohio.      While  it  is  true  that,  in  the  cases  where  proof  of  a  collateral 

3 — Peters,  J.,  in  Eaton  v.  Telegraph  Co.  same  thing  in   the  same  way  upon  another 

(1878),    68    Me.    63,    67     (whether    A    had  and    different    occasion.'       It    is    sometimes 

sold    to    B,    or    was    merely    holding    for   B,  permissible    to    show,    however,    what    men 

certain  certificates  of  stock  in   the   former's  generally   have    done   under  certain   circum- 

possession;    the    certificates     were     in     A's  stances   and   conditions,    as   showing   how   a 

name  and  bore  assignments  to  B,  the  facts  particular   man   might   act   under    the    same 

of    A's    possession    as    custodian    of    other  surroundings.  .  .  .  Here     the     dealing     in- 

certificates  of  the  same  stock  made  out  in  quired    about    was    between    the    same    per- 

B's   name    was    received) :      "The    difficulty  sons   at   the   same   time  and   related   to  the 

is  to  decide  what  is  and  what   is  not  rele-  same  kind  of  property.     The  reason  of  the 

Vant  evidence.     The  best  authorities  clearly  rule    which     excludes    irrelevant    testimony 

sustain    the    doctrine    that    'the    fact    of    a  admits    such    as    this." 

person   having   once   or   many  times   in   his  Compare    the  authorities   cited   in   W.,    § 

life    done    a    particular    act    in    a    particular  377. 
way  does  not   prove   that   he  has   done  the 


No.  51.    CONDITIONS,     EFFECTS,     ETC.,     OF     THINGS    AND    PLACES.       63 

crime  has  been  admitted  for  the  purpose  of  showing  motive,  the  relation 
between  the  two  crimes  was  usually  such  as  to  indicate  that  the  latter 
was  committed  in  order  to  prevent  an  investigation  into  and  an  expo- 
sure of  the  former  crime,  that  it  was  feared  would  be  followed  by 
prosecution  and  punished,  yet  we  can  discover  no  reason  in  principle 
for  the  limitation  of  the  rule  to  that  class  of  cases  strictly.  Any 
strong  incentive  must  furnish  an  equally  cogent  reason  for  the  admis- 
sion of  such  testimony.  .  .  .  Whoever  reads  the  record  in  this  case, 
and  particularly  Kent's  letters,  will  be  irresistibly  impressed  with 
the  thought  that  Kent  at  all  times  assumed  high  moral  grounds,  with 
an  exalted  standard  of  personal  purity.  There  is  evidence  tending  to 
show  that  he  claimed  for  himself  a  higher  social  position  than  he  was 
willing  to  concede  to  his  wife.  Under  these  circumstances,  it  would 
be  intolerably  galling  to  him  to  have  his  wife  learn  that  he  was 
in  fact  a  felon,  that  he  had  married  her  under  an  assumed  name,  and 
that  during  all  these  years  he  had  led  a  life  of  duplicity  and  hypocrisy. 
.  ,  .  Nor  can  we  sanction  the  views  of  the  learned  counsel  that  these 
collateral  crimes  were  too  remote  in  time  to  furnish  any  motive  for  the 
commission  of  the  crime  here  charged.  Motive  may  or  may  not  be 
affected  by  the  lapse  of  time.  Ordinarily,  a  man  who  had  com- 
mitted a  murder  20  years  in  the  past  would  be  just  as  much  concerned 
to  prevent  exposure  and  punishment  for  that  crime  as  though  it  were 
but  one  year  in  the  past.  And  in  this  case,  if  the  discovery  by  Mrs. 
Kent,  at  the  time  of  her  death,  of  these  dark  and  criminal  spots  in  her 
husband's  life,  would  have  been  just  as  galling  and  humiliating  to  him 
as  if  discovered  the  first  year  of  their  married  life,  then  his  motive 
to  prevent  such  discovery  would  be  just  as  strong  at  the  former  time 
as  at  the  latter."* 


SUB-TITLE  III. 


EVIDENCE   TO    PROVE    FACTS    OF   EXTERNAL    INANI- 
MATE   NATURE  (EVENTS,  CONDITIONS,  CAUSES, 
QUALITIES,  AND  EFFECTS  OF  THINGS 
AND  PLACES). 

EMERSON  V.  LOWELL  GASLIGHT   CO.    (1862). 

5  All.  410. 

At  the  trial  in  the  Superior  Court,  before  Putnam,  J.,  it  appeared 

that  in  January,  1857,  the  gas  escaped  from  the  defendant's  main  pipe 

in  Middlesex  Street  in  the  citv  of  Lowell,  under  the  same  cir- 

cumstances  stated  in   Hunt  v.   Lowell   Gas  Light  Co.    (i   Allen 

343),   and  passed  under  the   frozen   earth  through   sewers   and  drains 

into   the    cellar    and    house   occupied   by   the   plaintiffs,    on    Middlesex 

4— Compare   the   authorities   cited   in   \V.,  §  390. 


64  CIRCUMSTANTIAL    EVIDENCE.  No.  51, 

Street,  of  which  the  defendants  had  notice;  and  that  it  was  several 
days  after  they  received  notice  of  the  escape  of  the  gas,  before  they 
discovered  the  place  of  the  leak  in  their  main  pipe.  The  plaintiffs 
offered  to  show  that  a  large  number  of  houses  in  the  neighborhood,  the 
drains  of  which  connected  with  these  sewers,  were  filled  with  gas,  and 
that  wherever  the  gas  entered  sickness  followed,  but  the  judge  rejected 
the  evidence. 

Merrick,  J.:  "The  evidence  offered  by  the  plaintiffs  to  show  that 
wherever  the  gas  which  escaped  from  the  fracture  in  the  defendants' 
pipe  entered  any  dwelling-house  in  the  neighborhood  of  the  plaintiffs, 
sickness  followed,  was  properly  excluded.  Each  separate  and  indi- 
vidual case  must  stand  upon,  and  be  decided  by,  the  evidence  particu- 
larly applicable  to  it.  The  attending  circumstances  may  be  so  dift'erent, 
that  the  occurrence  of  sickness  in  one  house  would  have  no  tendency 
to  show  the  cause  of  illness  in  the  occupants  of  another.  If  such  evi- 
dence was  admissible,  the  issues  in  a  single  cause  might  be  indefinitely 
multiplied;  and  this  would  tend  only  to  confusion,  and  to  mislead  the 
jury." 


GEORGE  L.  HUNT  v.  LOWELL  GASLIGHT  CO.    (1864). 

8  All.  i6p. 

At  the  trial,  before  Metcalf,  J.,  the  evidence  tended  to  show  that 
the  plaintiffs  lived   in   New   Hampshire,   and  on  the  4th  of   February, 
i8s7,  came  to  the  house  of  Aaron  Hunt  in  Lowell  and  remained 
**  there  for  nine  days ;  that  gas  had  escaped  into  the  house  under 

the  circumstances  stated  in  i  Allen  344,  and  the  plaintiffs  became  ill, 
and  returned  home,  where  they  were  sick  for  several  weeks.  The 
plaintiffs  were  allowed  to  prove,  against  the  defendants'  objection,  that 
up  to  that  time  the  family  of  said  Aaron  had  been  in  perfect  health, 
and  that  immediately  or  soon  after  the  escape  of  the  gas  into  the 
house  every  member  of  the  family  became  seriously  sick;  but  no  evi- 
dence of  the  particulars  of  the  sickness  of  any  of  them  was  admitted. 

Chapman,  J. :  "The  plaintiffs  were  visitors  in  the  family  of  Aaron 
Hunt  at  the  time  when  the  defendants'  gas  escaped  into  the  house,  and 
they  were  permitted  to  offer  evidence  that  Aaron  Hunt  and  his  family 
had  been  in  perfect  health  up  to  the  time  when  the  gas  began  to  escape 
into  their  house,  and  that,  immediately  or  soon  after,  every  member 
of  the  family  became  seriously  sick.  The  admission  of  this  evidence  is 
excepted  to.  But  evidence  of  this  character  was  held  to  be  admissible 
in  the  case  of  Aaron  Hunt  against  these  defendants  (i  Allen  344). 
The  plaintiffs  were  not  allowed  to  give  evidence  of  the  particulars  of 
the  sickness  of  any  one  of  these  persons;  and  it  is  objected  that,  if  the 
evidence  was  admissible  to  any  extent,  the  particulars  should  have  been 
inquired  into.  But  the  sickness  of  these  persons  is  a  collateral  fact, 
and  is  admissible  merely  for  the  purpose  of  showing  the  nature  of  the 


No,  53.    CONDITIONS,     EFFECTS,     ETC.,    OF     THINGS    AND    PLACES.       65 

gas  which  came  into  the  house,  to  the  influence  of  which  all  the  in- 
mates were  subjected  alike.  Evidence  that  the  inmates  of  another 
house  were  made  sick  in  consequence  of  inhaling  the  gas  that  escaped 
into  their  house  from  the  same  defect  in  the  defendants'  pipes  has  been 
held  to  be  inadmissible:  Emerson  v.  Lowell  Gas  Light  Co.  (3  Allen 
410).  The  evidence  should  be  limited  to  the  effect  of  the  gas  upon 
those  who  have  in  common,  and  under  similar  circumstances,  inhaled 
it.  How  far  the  plaintiff  shall  be  permitted  to  go  into  particulars  in 
offering  such  evidence  should  depend  somewhat  on  the  circumstances 
of  the  case,  and  must,  within  reasonable  limits,  be  left  to  the  discretion 
of  the  presiding  judge.  If  it  falls  short  of  proving  that  the  gas  caused 
the  sickness  of  the  other  persons,  it  amounts  to  nothing.  But  it  might 
be  very  unreasonable  to  permit  the  case  to  branch  out  into  several  col- 
lateral issues  on  such  a  point. "^ 


DARLING  V.  WESTMORELAND  (1872). 
52  N.  H.  401. 

Case  by  Charles  Darling  against  the  town  of  Westmoreland,  for  an 
injury  caused  by  defects  in  a  highway.  Verdict  for  the  defendants, 
and  motion  of  the  plaintiff  for  a  new  trial.  The  defects  alleged 
*  by  the  plaintiff  were,  a  pile  of  lumber  by  the  side  of  the  road 
likely  to  frighten  horses,  and  an  insufficient  railing  of  a  bridge.  His 
claim  was,  that  his  horse  was  frightened  by  the  lumber  as  he  crossed 
the  bridge,  and  ran  back,  and  backed  off  the  bridge.  One  ground  of 
defence  was,  that  the  horse  was  vicious  and  unsafe,  and  much  evidence 
was  offered  on  that  point  on  both  sides.  The  plaintiff  introduced  the 
testimony  of  a  Mr.  Cressy,  who  testified  that  he  rode  past  this  pile  of 
lumber  with  a  Mr.  Fletcher,  and  he  offered  to  prove  by  him  that 
Fletcher's  horse  was  frightened  by  the  lumber;  but  the  court  rejected 
the  evidence,  and  the  plaintiff  excepted. 

Doe,  J. :  "One  question  of  fact  was,  whether  the  pile  of  lumber 
was  likely  to  frighten  horses.  .  .  .  Was  the  fright  of  Fletcher's 
horse  competent  evidence  on  the  question  whether  the  lumber  was 
likely  to  frighten  horses?  .  .  .  On  the  independent  and  general 
question  of  the  horse-frightening  capacity  of  a  certain  pile  of  lumber, 
what  rule  of  law  considers  the  fright  of  [the  plaintiff's]  horse  as  im- 
portant and  disregards  the  fright  of  Mr.  Fletcher's  horse  as  of  no 
consequence  at  all  ?  .  .  .  If  the  question  were,  whether  the  lum- 
ber was  capable  of  floating  in  water,  or  making  a  good  fire,  or  being 
sawed  or  cut  or  planed  in  a  specific  manner,  or  supporting  horses  and 
wagons  passing  over  a  bridge,  there  could  be  no  legal  objection  to  the 
trial  of  an  appropriate  experiment  upon  it  in  the  presence  of  the  jury, 
or  to  evidence  of  experiments  that  had  been  tried  elsewhere.  And 
there  is  no  reason,  outside  of  the  technical  rules  of  law,  why  its  ability 

I — Compare  the  authorities  cited  in  W.,  §  4S7- 
5 


63  CIRCUMSTANTIAL    EVIDENCE.  No.  53. 

to  frighten  horses  should  not  be  tested  out  of  court,  and  proved  in 
court  in  the  same  manner.  When  we  want  to  know  whether  a  certain 
horse  is  skittish  or  is  capable  of  a  certain  speed,  whether  a  certain  sub- 
stance is  poisonous  and  destructive  of  animal  or  vegetable  life,  whether 
certain  materials  are  of  a  certain  strength,  whether  a  certain  field  or  a 
certain  kind  of  soil  is  likely  to  produce  a  certain  kind  or  amount  of 
crop,  whether  a  certain  man  or  brute  or  machine  is  likely  to  perform 
a  certain  kind  or  amount  of  work,  or  whether  anything  can  be  done 
or  is  likely  to  be  done,  one  way  is  to  speculate  about  it,  and  another 
way  is  to  try  it.  The  law  is  a  practical  science,  and  when  it  is  ap- 
pealed to  to  direct  what  means  shall  be  used  to  find  out  whether  a 
certain  pile  of  lumber  is  likely  to  frighten  horses,  if  any  one  asserts 
that,  on  this  subject,  the  law  prefers  speculation  to  experience,  abhors 
actual  experiment  and  delights  in  guesswork,  the  person  advancing  such 
a  proposition  takes  upon  himself  the  task  of  maintaining  it  upon  some 
legal  rule,  distinctly  stated  by  him  and  well  established  by  the  authori- 
ties. Such  a  proposition  is  not  sustained  by  the  reason  of  the  law.  It 
is  sustained  by  nothing  that  can  be  justly  called  a  principle.  By  what 
technical  rule,  at  war  with  reason  and  principle,  is  it  supported?  The 
very  few  authorities  tending  to  sustain  the  exclusion  of  the  fright  of 
Fletcher's  horse  in  this  case,  are  based  upon  the  authority  or  the  rea- 
son of  the  decision  in  Collins  v.  Dorchester  (6  Cush.  396),  and  two 
other  Massachusetts  cases  which  rest  upon  that  case.  ...  A  con- 
sideration, substantially  disposing  of  the  very  few  authorities  that 
have  any  considerable  tendency  to  sustain  the  ruling  in  this  case,  is, 
that  Collins  v.  Dorchester,  on  which  the  others  are  based,  is  no  au- 
thority for  the  exceptional  doctrine  it  has  been  supposed  to  establish. 
That  case  being  no  foundation  for  the  others,  and  they  having  no  other 
foundation,  they  all  fall  together.  In  that  case,  'the  highway  in  ques- 
tion passed  through  a  marsh,  and  was  made  smooth  and  passable  for 
the  width  of  at  least  thirty-one  feet ;  and,  on  each  side,  at  the  edge  of 
and  along  the  road,  there  was  a  row  of  posts  about  six  feet  apart,  ex- 
tending on  each  side  for  twenty  rods  or  more,  which  had  been  stand- 
ing for  many  years.  The  plaintiff  drove  his  chaise  against  one  of  the 
posts,  so  that  one  wheel  passed  outside  of  and  locked  upon  the  post ; 
and  this  accident  was  the  occasion  of  the  injury  complained  of.  It 
appeared  that  two  or  three  of  the  posts,  at  about  the  place  where  the 
accident  occurred,  were  broken  down  or  removed.  The  alleged  defect 
was  the  want  of  a  railing  at  the  place  where  the  accident  occurred. 
.  .  .  The  plaintiff  .  .  .  proposed  to  prove  by  one  Sprague,  that, 
before  the  happening  of  the  accident  complained  of,  the  witness  was 
riding  over  the  same  road,  at  or  near  the  same  place,  and  under  sim- 
ilar circumstances,  and  that  an  accident  similar  to  the  one  in  question 
then  occurred,  which  was  caused  by  the  same  alleged  defect,  and  with- 
out anv  neglect  or  fault  on  the  part  of  the  witness.'  The  judge  ruled 
that  this  evidence  was  not  competent  'for  the  purpose  of  proving  the 


No.  53.     CONDITIONS,     EFFECTS,     ETC.,    OF     THINGS    AND  PLACES.       67 

way  defective.'  The  whole  of  the  decision  of  the  question  raised  by 
that  ruling  was  this:  'The  testimony  of  Sprague,  that  he,  before  the 
injury  complained  of  by  the  plaintiff,  received  a  similar  injury  at  or 
near  the  same  place,  without  any  negligence  on  his  part,  was  not  com- 
petent for  the  purpose  of  proving  that  the  road  was  defective  at  the 
time  and  in  the  place  of  the  plaintiff's  injury.  It  was  testimony  con- 
cerning collateral  facts,  which  furnished  no  legal  presumption  as  to 
the  principal  facts  in  dispute,  and  which  the  defendants  were  not  bound 
to  be  prepared  to  meet.  Standish  v.  Washburn  (21  Pick.  237).  Even 
a  judgment  recovered  by  Sprague  against  the  defendants  for  damages 
sustained  by  him  by  reason  of  a  defect  in  the  road,  would  not  be  admis- 
sible in  evidence  in  favor  of  the  plaintiff.' 

"In  that  case,  a  sufficient  railing  on  the  posts  would  have  prevented 
the  plaintiff's  wheel  going  outside  of  the  post  with  which  his  carriage 
came  in  contact.  The  question  was,  whether,  in  the  undisputed  con- 
dition of  the  road,  the  absence  of  such  railing,  exposing  travellers  to 
the  danger  of  their  wheels  going  outside  of  and  locking  upon  the  posts, 
was  a  defect.  No  experiment  or  experience  of  the  plaintiff,  or  Sprague, 
or  any  one  else,  was  necessary  to  show  that  the  posts  were  capable  of 
being  run  against.  It  does  not  appear  that  any  such  experiment  or 
experience  would  assist  the  judgment  of  the  jury  on  the  question 
whether,  in  the  undisputed  condition  of  the  road,  the  posts  were  likely 
to  be  run  against.  Such  a  case  is  no  authority  for  holding  that  the 
disputed  horse-frightening  capacity  of  a  certain  pile  of  lumber  cannot 
be  shown  by  experience.   .    .    . 

"The  only  rule  relied  upon  to  exclude  experimental  knowledge  in 
such  a  case  as  this,  is  the  rule  requiring  the  evidence  to  be  confined  to 
the  issue, — that  is  to  the  facts  put  in  controversy  by  the  pleadings, 
prohibiting  the  trial  of  collateral  issues, — that  is,  of  facts  not  put  in 
issue  by  the  pleadings,  and  excluding  such  evidence  as  tends  solely  to 
prove  facts  not  involved  in  the  issue.  This  rule  merely  requires  evi- 
dence to  be  relevant.  It  merely  excludes  what  is  irrelevant.  It  is  a 
rule  of  reason,  and  not  an  arbitrary  or  technical  one,  and  it  does  not 
exclude  all  experimental  knowledge.  A  fact  as  relevant  and  as  directly 
involved  in  the  issue  of  guilty  or  not  guilty  between  these  parties,  as 
any  fact  in  controversy,  was  the  likelihood  or  probability  of  the  lum- 
ber frightening  ordinary  horses.  There  was  nothing  collateral — that 
is,  nothing  irrelevant — in  that.   .    .    . 

"When  a  trial  is  likely  to  be  unreasonably  protracted  by  a  great 
number  of  witnesses  impeaching  or  sustaining  the  character  of  other 
witnesses,  the  evil  is  not  remedied  by  any  principle  of  law  prescribing  the 
exact  number.  Many  evils  of  that  kind  must  necessarily  be  avoided 
by  the  judge  determining,  as  a  matter  of  fact,  upon  the  circumstances 
of  the  case,  where  the  line  of  reasonableness  is.  As  to  the  number  of 
experiments  or  experiences  on  many  points,  collateral  in  a  certain 
sense,  but  relevant  in  the  legal  sense,  it  is  impossible  in  the  nature  of 


68  CIRCUMSTANTIAL    EVIDENCE.  No.  53. 

the  case  for  a  limit  to  be  fixed  as  a  matter  of  law.  But  it  does  not 
follow  that  the  law  excludes  all  evidence  of  which  it  cannot  measure  a 
reasonable  quantity." 


PHILLIPS   V.   WILLOW    (1887). 

70  Wis.  p,  34  N.  W.  731. 

Cole,  C.  J.:  "This  is  an  action  to  recover  damages  for  injuries 
sustained  by  the  female  plaintiff  while  passing  along  a  public  highway 
in  the  defendant  town.  She  and  her  husband  were  riding  in  a 
cutter,  which  was  overturned  by  the  runner  striking  or  going 
over  a  stone.  It  was  claimed  that  this  stone  was  in,  or  very  near,  the 
traveled  track  of  the  highway,  and  constituted  a  defect  or  dangerous 
obstruction  thereof.  On  the  part  of  the  plaintiffs,  witnesses  were  al- 
lowed to  testify,  against  the  objection  of  the  defendant,  that,  near  the 
time  the  accident  occurred,  they  drove  along  the  highway, — in  one  case 
with  a  wagon,  and  struck  the  stone  in  question,  and  came  near  tipping 
over ;  in  the  other  case,  the  witness  was  in  a  cutter,  and  ran  against 
the  stone,  and  was  tipped  over.  It  is  claimed  by  the  defendant's  coun- 
sel that  this  testimony  as  to  what  happened  to  others  in  driving  against 
the  alleged  defect  was  inadmissible,  and  was  calculated  to  prejudice  the 
town,  and  for  this  reason  a  new  trial  should  be  awarded.  We  think 
this  position  is  sound  and  must  prevail.  ...  It  must  be  admitted  that 
the  cases  are  not  in  accord  upon  this  question.  In  some  it  is  held  that  the 
evidence  of  other  accidents,  or  of  the  effect  on  carriages  driven  by 
other  persons  than  the  plaintiff  over  the  same  road,  is  competent,  be- 
cause it  has  a  tendency  to  show  its  fitness  or  unfitness  for  public  travel, 
(Kent  V.  Town  of  Lincoln,  32  Vt.  591  ;  Quinlan  v.  City  of  Utica,  11 
Hun,  217;)  or  tends  to  prove  that  the  object  was  or  was  not  naturally 
calculated  to  frighten  horses,  (Darling  v.  Westmoreland,  52  N.  H. 
401;  House  V.  Metcalf,  27  Conn.  632;)  or  to  show  knowledge  on  the 
part  of  the  city  that  a  bridge  was  not  properly  lighted  so  as  to  be  safe 
to  persons  crossing  it,  (City  of  Chicago  v.  Powers,  Adm'r,  42  111.  169;) 
or  to  show  the  result  of  experience  or  experimental  knowledge  of  the 
possibility  of  the  negligent  act  relied  on  as  causing  the  injury  (Piggot 
v.  Railway  Co.,  3  C.  B.  229,  and  Morse  v.  Railway,  16  N.  W.  Rep. 
358.)  Other  courts  have  held,  as  this  court  did  in  the  Bloor  Case, 
that  all  evidence  as  to  collateral  facts,  or  those  which  are  incapable  of 
affording  any  reasonable  presumption  or  inference  as  to  the  principal 
fact  or  matter  in  dispute,  should  be  excluded,  because  such  evidence 
tends  to  draw  away  the  minds  of  the  jurors  from  the  point  in  issue, 
and  to  excite  prejudice  and  mislead  them ;  and,  moreover,  because  the 
adverse  party,  having  had  no  notice  of  such  a  course  of  examination, 
is  not  presumably  prepared  to  meet  it.  .  .  .  It  is  apparent  that  if  this 
testimony  was  relevant  to  prove  a  defect  .  .  .  ,  it  would  have  been 
competent    [in   answer]    to   show   that   these   persons   were   not   driving 


No.  55,    CONDITIONS,    EFFECTS,    ETC.,    OF     THINGS    AND    PLACES.       69 

carefully,  or  had  skittish  teams;  also  that  hundreds  had  passed  over 
this  highway  in  safety  with  carriages,  notwithstanding  the  alleged  de- 
fect. So  issue  after  issue  would  be  raised,  and  facts  collateral  to  the 
main  issue  made  by  the  pleadings  would  multiply ;  the  main  issue  form- 
ing new  ones,  and  the  suit  itself  expanding  like  the  banyan  tree  of  In- 
dia, whose  branches  drop  shoots  to  the  ground  which  take  root  and 
form  new  stocks  till  the  tree  itself  covers  great  space  by  its  circum- 
ference." ^ 


BEMIS  V.  TEMPLE  (1894). 

62  Mass.  S42,  38  N.  E.  g-jo. 

Tort    for    injuries    caused    by    the    fright    of    the    plaintiff's    horse 

at  a   flag  suspended  by   the  defendant   across   a   street.     The  plaintiff 

called   as   a   witness   one   Hamilton,   who   testified   that   he   was 

EC 

a  teamster  residing  in  Spencer;  and  that  during  the  summer 
and  fall  of  1892  he  drove  frequently  through  that  portion  of  Main 
Street  over  which  the  flag  was  suspended,  sometimes  as  often  as 
five  or  six  times  daily.  The  plaintiff  then  asked  him  the  following 
question:  "Have  you  ever  observed  other  horses  than  the  plaintiff's, 
which  were  reasonably  safe  and  gentle  for  driving,  to  be  frightened  at 
this  flag  when  it  was  being  swayed  gently  by  the  breeze,  and  not  being 
blown  violently?"  The  defendant  objected  to  this  question;  the  judge 
excluded  it ;  and  the  plaintiff  excepted. 

Knowlton,  J. :  "To  maintain  his  case  the  plaintiff  was  obliged  to 
show  that  the  flag  hung  across  the  street  was  an  object  which  was  so 
likely  to  frighten  horses  as  to  render  driving  upon  the  street  unsafe, 
and  that  in  its  position  there  it  was  a  public  nuisance.  .  .  .  To  ascer- 
tain the  truth,  the  jury  must  either  use  such  knowledge  as  they  happen  to 
have  on  the  subject  without  the  aid  of  testimony,  or  experts  must  be 
called  to  give  their  opinions  if  the  subject  is  one  in  regard  to  which 
experts  can  be  found,  or  witnesses  must  be  permitted  to  state  particular 
facts  which  they  have  observed,  each  one  of  which  is  an  illustration 
and  example  of  the  general  fact  in  dispute.  The  only  objection  to 
testimony  of  the  last  kind  in  such  a  case  is  that  in  testing  it  collateral 
issues  may  be  raised.  Such  an  objection  in  many  cases  is  a  sufficient 
reason  for  excluding  the  testimony.  Whenever  a  line  of  inquiry  will 
give  rise  to  collateral  issues  of  such  number  and  difficulty  that  thev  will 
be  likely  to  confuse  and  distract  the  jury  and  unreasonably  protract 
the  trial,  it  should  not  be  permitted.  But  the  mere  fact  that  a  collat- 
eral issue  may  be  raised  is  not  of  itself  enough  to  justify  the  exclu- 
sion of  evidence  which  bears  upon  the  issue  on  trial.  Most  circum- 
stantial evidence  introduces  collateral  issues,  and  ordinarily  it  is  a 
practical  question,  depending  upon  its  relations  to  the  other  facts  and 
circumstances  in  the  case,  whether  it  should  be  received.     It  may  be 

I — Compare  the  authorities  cited  in  W.,  §  45S. 


70  CIRCUMSTANTIAL    EVIDENCE,  No.  55. 

remote  from  the  real  issue  or  closely  connected  with  it,  and  in  many 
cases  its  competency  depends  upon  the  decision  of  questions  of  fact, 
affecting  the  practical  administration  of  justice  in  the  particular  case, 
such  that  a  Court  of  law  will  refuse  to  revise  the  ruling  of  the  presid- 
ing judge,  but  will  treat  his  ruling  as  a  matter  of  discretion."  2 


CENTRAL  VERMONT  R.  CO.  v.  SOPER  (1894). 
8  C.  C.  A.  S41,  5p  Fed.  879. 

Action  for  the  value  of  grain  in  an  elevator  destroyed  by  fire.  The 
plaintiffs  claimed,  in  the  opening  of  their  case,  that  the  fire  originated 
at  the  foot  of  what  was  known  as  the  "lofting  leg."  This  lofting 
leg  was  a  piece  of  machinery  by  which  the  grain  was  carried 
from  the  bottom  to  the  top  of  the  elevator.  The  pulley  at  the  bottom 
of  the  lofting  leg  made  about  ninety-six  revolutions  per  minute;  and 
the  claim  of  the  plaintiffs  was  that  the  bearings  at  the  sides  of  this 
pulley  had  become  heated,  and  thereby  ignited  the  dust  which  had  ac- 
cumulated upon  them,  from  which  the  fire  was  communicated  to  the 
building.  The  plaintiffs  introduced  as  a  witness  one  Aaron  Linton, 
who  testified  that  he  was  for  many  years  foreman  in  this  elevator,  and 
well  acquainted  with  its  construction  and  method  of  operation.  The 
witness  testified  among  other  things,  that  the  bearings  of  this  pulley 
at  the  foot  of  the  lofting  leg  were  beneath  the  elevator  floor,  and  were 
oiled  by  pouring  oil  into  two  pieces  of  pipe,  about  two  feet  long,  which 
led  from  above  the  floor  down  into  the  bearings.  He  was  allowed  to 
testify,  against  the  objection  and  exception  of  the  defendant,  that  while 
he  was  foreman  of  the  elevator  these  bearings  frequently  became 
heated,  that  there  was  a  tendency  for  dust  to  accumulate  at  that  point, 
and  that  there  was  also  a  tendency  for  the  pipes  to  become  clogged  and 
filled  with  dust  and  grease. 

Putnam^  J.:  "[The  facts  objected  to]  relate  entirely  to  the  ten- 
dency of  things,  inanimate  things,  being  in  this  case  machinery.  The 
plaintiff  in  error  argued  as  though  they  related  to  the  peculiar  habits 
of  certain  specified  human  beings.  The  distinction  is  a  broad  one ;  and, 
if  it  is  kept  in  mind,  the  evidence  was  clearly  admissible  for  the  pur- 
pose, not  of  showing  that  the  employees  of  the  defendant  below  were 
negligent,  but  of  showing  .  .  .  that  it  is  the  tendency  of  certain  parts 
of  rapidly-running  machinery  to  get  heated,  and  of  dust  in  mills  where 
grain  is  ground  or  stored  to  be  of  a  highly  inflammable  character,  .  . 
.  both  for. the  purpose  of  showing  a  point  where  the  fire  might  have 
originated  and  also  of  showing  the  necessity  of  care  to  guard  that 
point."  ^ 

2 — Compare  the  authorities  cited  in  W.,  3 — Compare    the    doctrine    of    No.    40, 

§  457-  a»"^- 


No.  57.    CONDITIONS,    EFFECTS,    ETC.,    OF    THINGS    AND    PLACES.       71 

MAYNARD  v.  BUCK  (1868). 

100  Mass.  40. 

Action  in  contract  for  the  value  of  a  pair  of  steers  alleged  to  have 
been  lost  through  the  defendant's  negligence.  It  appeared  that  the  de- 
fendant was  a  drover  engaged  in  driving  cattle  from  Brighton 
to  various  points  between  that  place  and  Worcester;  that  on  No- 
vember 9,  1865,  the  plaintiffs  by  their  agents  intrusted  to  him  a  pair  of 
steers  to  drive  from  Brighton  to  Northborough  for  a  stipulated  price; 
that  he  received  the  same,  marked  them  by  cutting  in  the  hair  the  let- 
ter H,  and  left  Brighton,  according  to  his  custom,  on  the  afternoon  of 
that  day,  with  a  drove  of  one  hundred  and  twenty-three  cattle.  The 
evidence  left  it  uncertain  whether  the  steers  were  in  the  drove  or  had 
been  stolen  from  the  defendant's  yard  at  Brighton  before  he  started. 
The  defendant  offered  evidence,  not  controlled  by  the  plaintiff's  evi- 
dence, tending  to  show  that,  at  about  dusk  of  said  day,  as  he  was  pro- 
ceeding with  his  drove,  assisted  by  two  men  and  a  boy,  when  he 
had  reached  a  point  near  the  Boston  and  Worcester  Railroad  in 
Newtonville  a  passing  train  of  cars  frightened  and  stampeded  the  drove 
into  the  adjoining  fields;  that,  as  soon  as  he  could  with  the  aid  of  his 
men,  he  got  the  drove  back  in  the  road  and  proceeded  to  the  place 
where  he  stopped  with  it  for  the  night;  and  that  upon  counting  the 
drove  it  was  found  that  nine  cattle  were  missing.  The  defendant  tes- 
tified that  the  next  morning  he  proceeded  with  his  drove  towards  his 
destination;  that  he  had  cattle  to  deliver  at  various  points,  as  far  as 
Worcester,  at  which  last  place  he  arrived  with  the  remainder  of  the 
drove  on  Friday  evening,  November  1 1 ;  and  that  early  the  following 
morning  he  returned  to  seek  the  lost  cattle,  found  seven  of  them,  but 
was  unable  to  find  the  steers  in  question.  There  was  also  evidence 
tending  to  show  that  the  usual  practice  or  ordinary  mode  of  proceed- 
ing of  drovers,  driving  on  routes  from  Brighton  forty  or  fifty  miles 
therefrom,  when  one  or  a  small  number  of  cattle  stray  from  the  drove 
and  cannot  be  immediately  found,  was  to  deliver  the  rest  of  the  drove 
before  returning  to  seek  for  the  lost  cattle. 

Wells,  J.:  "The  defendant  insisted  that  the  jury  should  be  instructed 
that,  'if  he  did  do  the  things  that  drovers  of  common  prudence,  en- 
gaged in  the  same  business,  ordinarily  do,  he  was  not  guilty  of  such 
negligence  as  will  make  him  liable  in  this  action.'  But  this  is  not  the 
legitimate  application  of  evidence  admitted  to  show  the  usual  practice 
in  similar  cases.  .  .  .  The  effect  and  purpose  of  the  evidence  is  to 
aid  the  jury  in  forming  their  judgment  of  what  the  party  was  bound 
to  do,  or  was  justified  in  doing,  under  all  the  circumstances  of  the  case. 
What  had  been  done  by  others  previously,  however  uniform  in  mode  it 
may  be  shown  to  have  been,  does  not  make  a  rule  of  conduct  by  which 
the  jury  are  to  be  limited  and  governed.     It  is  not  to  control  the  judg- 


72  CIRCUMSTANTIAL    EVIDENCE.  Nu.  57. 

ment  of  the  jury,  if  they  see  that  in  the  case  under  consideration  it  is 
not  such  conduct  as  a  prudent  man  would  adopt  in  his  own  affairs,  or 
not  such  as  a  due  regard  to  the  obligations  of  those  employed  in  the 
affairs  of  others  would  require  them  to  adopt.  It  is  evidence  of  what 
is  proper  and  reasonable  to  be  done,  from  which,  together  with  all  the 
other  facts  and  circumstances  of  the  case,  the  jury  are  to  determine 
whether  the  conduct  in  question  in  the  case  before  them  was  proper 
and  justifiable.  We  think  the  instruction  asked  for,  in  this  particular, 
was  not  such  as  should  have  been  given."  * 

4— Compare  the  authorities  cited  in  W.,  §  461. 


isO.  58.         BOOK    I  :    ADMISSIBILITY.      PART   I :    RELEVANCY.  73 


TITLE  II. 


TESTIMONIAL   EVIDENCE. 

^Analysis  of  Elements  of  a  Testimonial  Assertion;  Observa- 
tion, Recollection,  Narration. — "There  are  three  general  groups  of 
rules  to  be  considered,  which  correspond  to  these  three  general 
processes  of  inference  in  using  witnesses : 

I.  Admissibility  of  Testimonial  Assertions,  i.  e.  Witness-Qualifica- 
tions ; 

II.  Impeachment  of  Testimonial  Assertions; 

III.  Rehabilitation  of  Testimonial  Assertions. 

"Before  proceeding  to  the  consideration  of  these  rules,  an  analysis 
is  desirable  of  the  elements  of  a  piece  of  testimonial  evidence;  for  upon 
this  analysis  will  depend  the  grouping  of  topics,  and  from  it  may  be  sur- 
mised something  of  the  necessary  requirements  of  such  evidence. 

"When  a  witness'  statement  is  offered  as  the  basis  of  an  evidential 
inference  to  the  truth  of  his  statement — for  example,  the  statement  of 
A  that  B  struck  X — ,  it  is  plain  that  at  least  three  distinct  elements 
are  present;  or,  put  in  another  way,  that  there  are  three  processes,  in 
the  absence  of  any  one  of  which  one  cannot  conceive  of  testimony. 
First,  the  witness  must  know  something,  i.  e.  must  have  observed  the 
affray  and  received  some  impressions  on  the  question  whether  B  struck 
X ;  to  this  element  may  be  given  the  generic  term  Observation.  Sec- 
ondly, the  witness  must  have  a  recollection  of  these  impressions,  the 
result  of  his  Observation ;  this  may  be  termed  Recollection.  Thirdly, 
he  must  communicate  this  recollection  to  the  tribunal ;  that  is,  there 
must  be  Communication,  or  Narration,  or  Relation  (for  there  is  no 
single  term  entirely  appropriate).  Now  the  very  notion  of  taking  a 
human  utterance  as  the  basis  of  belief  in  the  truth  of  the  fact  asserted 
impliedly  attributes  these  three  processes  to  the  witness, — Observation, 
Recollection,  Communication.^     Whatever  rules,  therefore,  limit  the  ac- 

I — Quoted   from  W.,  §§  478-430.  of    observing    the    subject    to    which    they 

2 — Evans,     Notes     to     Pothier,     II,     202  depose,    having    actually    observed    it    with 

(1806):       "All    regard    to    testimony    sup-  adequate    attention,    and    having    a    distinct 

poses     the     general     proposition     that     wit-  and    perfect    memory    with    respect    to    it, 

nesses,   not  having  any  motives   for  assert-  relate   what  they   have   seen  or   heard   with 

ing    what    is    false    or    suppressing    what    is  accuracy    and    fidelity." 
true,   having   had   an   adequate   opportunity 


74  TESTIMONIAL   EVIDENCE.  No.  58. 

ceptance  of  testimonial  assertions  must  have  reference  to  some  one  or 
more  of  these  elements. 

"Moreover,  in  the  function  fulfilled  by  each  of  the  three  elements  or 
processes  is  to  be  found  in  general  form  the  fundamental  canons  of 
which  the  various  detailed  rules  will  be  the  applications  and  from  which 
they  are  sometimes  direct  deductions  Thus,  the  notion  of  Observation 
is  that  the  external  event  has  in  some  way  or  other  impressed  itself  on 
the  witness'  mind,  to  be  now  reproduced  to  us,  in  court.  This  impres- 
sion of  the  witness,  then  (knowledge,  observation,  or  whatever  it  be 
called),  should  adequately  represent  or  correspond  to  the  fact  itself  as 
it  really  existed  or  exists ;  and  the  practical  rules  under  this  head  will 
be  found  to  have,  for  their  common  purpose,  the  object  of  ensuring  the 
probability  of  a  fairly  accurate  knowledge  on  the  part  of  the  witness. 
Again,  the  function  of  Recollection  is  to  recall  or  reproduce  the  orig- 
inal impressions  of  observation ;  and  such  rules  as  the  law  has  laid 
down  under  this  head  are  usually  therefore  merely  applications  of  this 
fundamental  notion  that  Recollection  must  fairly  correspond  with  or 
reproduce  the  original  Knowledge  or  Observation.  Finally,  the  func- 
tion of  Narration  or  Communication  is  to  reproduce  for  the  apprehen- 
sion of  the  tribunal  the  Recollected  results — themselves  already  repro- 
duced from  Observation — ;  and  the  common  purpose  of  the  varied  rules 
tmder  this  head  is  to  ensure  that  the  story  as  told  shall  represent  with 
fair  accuracy  what  the  witness  once  observed  and  now  recollects. 

"The  rules,  thus  analyzed,  would  however  deal  with  the  simple 
question,  Does  this  witness  actually  know,  recollect,  communicate  with 
sufficient  accuracy  ? — a  question  requiring  in  each  instance  anew  an  in- 
vestigation, and  a  decision  based  on  the  facts  brought  out.  But  experi- 
ence has  carved  out  certain  rough  rules  of  convenience  which,  if  ap- 
plied at  the  outset,  may  save  the  necessity  of  a  detailed  investigation  as 
to  the  sufficiency  of  actual  knowledge,  recollection,  and  communication ; 
for  it  is  obvious  that  if  we  find  the  witness  incapable — i.  e.  lacking  in 
the  very  power — of  acquiring  adequate  knowledge  or  of  sufficiently  rec- 
ollecting or  of  properly  telling,  then  further  inquiry  whether  he  did  in 
fact  know  or  does  in  fact  recollect  or  well  relate,  is  useless  and  may 
be  omitted.  For  instance,  if  A  is  put  on  the  stand  to  testify  to  the 
color  of  a  horse,  it  will  be  unnecessary  to  inquire  whether  and  where 
and  when  he  saw  the  horse,  if  it  appears  at  the  outset  that  he  has  been 
blind  from  birth.  So,  too,  it  would  be  unnecessary  to  ask  B,  who  is 
put  forward  to  testify  to  the  results  of  a  post-mortem  examination, 
whether  he  was  present  and  took  part,  if  it  appears  at  the  outset  that 
he  knows  nothing  of  medicine  or  of  surgery.  When  the  witness  is 
found  to  lack  the  proper  capacity  or  power,  it  becomes  not  only  unnec- 
essary but  improper  to  consider  whether  he  actually  knows,  for  it  is 
impossible  for  him  to  know ;  we  do  not  trust  his  statement  that  he  does 
know.  Thus,  in  addition  to  the  rules  defining  the  requirements  as  to 
actual   knowledge,    recollection,   and   communication,   there   arise   other 


No.  58.  INTRODUCTORY.  75 

rules  defining  the  kinds  of  incapacity  to  know,  recollect,  and  communi- 
cate, which  exclude  the  witness  at  the  outset  without  further  inquiry. 

"Of  this  incapacity  there  are  three  distinct  sorts:  First,  there  is  an 
incapacity  affecting  the  general  mental  or  moral  powers, — of  which  in- 
sanity, infancy,  dumbness,  and  the  like,  are  instances.  This  sort  of 
incapacity  may  affect  the  witness'  power  of  knowing  or  of  recollecting 
or  of  communicating  or  of  doing  all  three,  and  must  be  examined  with 
reference  to  each.  Secondly,  there  is  an  incapacity  involving  a  lack 
of  power  to  judge  rightly  on  particular  subjects,  and  arising  from  lack 
of  experience  or  training.  This  incapacity  extends  to  particular  topics 
only,  not  necessarily  to  the  whole  subject  of  litigation.  Thirdly,  there 
is  an  incapacity  arising  from  the  witness'  relation  to  the  controversy, 
i.  e.,  from  marital  relationship  or  from  pecuniary  interest  in  the  subject 
of  the  suit.  This  incapacity — now  always  recognized  to  a  limited  ex- 
tent only — is  supposed  to  involve  an  inability  to  give  any  credible  testi- 
mony on  the  subject  of  the  particular  cause,  and,  when  it  exists,  affects 
all  three  elements  alike.  As  for  the  names  to  be  applied  to  these  three 
sorts  of  incapacity,  there  are  none  of  general  acceptance,  nor  is  it  easy 
to  select  proper  ones.  The  first  may  be  termed  Organic,  as  affecting 
mental  and  moral  functions  or  powers;  the  second  Experiential,  as 
involving  a  lack  of  sufficient  experience  or  training;  the  third  Emo- 
tional, as  involving  the  dominance  of  untrustworthy  motives. 

"In  accordance  with  the  preceding  analysis,  the  order  of  topics  un- 
der the  general  title  of  Testimonial  Evidence  becomes: 

Sub-title  I :  Qualifications  of  Witnesses. 

Topic   I :  Organic   Capacity ;   including 

Sub-topic   A:  Mental    Derangement    (Insanity,    Disease,    Idi- 
ocy); 

Sub-topic   B:  Mental   Immaturity    (Infancy); 

Sub-topic  C:  Moral  Depravity   (Sex,  Religion,  Race,  Infamy)  ; 

'    Topic  II :  Experiential  Capacity ; 

Topic  III :  Emotional  Capacity ; 
Sub-topic  A:  Pecuniary  Interest; 
Sub-topic   B :  Domestic   Relationship. 

Topic  IV:  Observation,  or  Knowledge. 

Topic  V:  Recollection. 

Topic  VI :  Narration,  or  Communication. 
Sub-title  II :  Impeachment  of  Witnesses ;  with  further  subdivisions. 
Sub-title    III :  Rehabilitation    of    Witnesses ;    with    further    subdivi- 
sions." 


7ti  TESTIMONIAL  QUALIFICATIONS.  No.  59. 


SUB-TITLE  I: 

QUALIFICATIONS   OF   WITNESSES. 
Topic  I:     Organic  Capacity. ^ 

REGINA  V.  HILL  (1851). 
2  Den.  &  P.  C.  C.  254. 
The  proposed  witness  said :  ''I  am  fully  aware  that  I  have  a  spirit, 
and  20,000  of  them;  they  are  not  all  mine;  I  must  inquire — I  can, 
where  I  am;  I  know  which  are  mine.  Those  ascend  from  my 
""  stomach  to  my  head,  and  also  those  in  my  ears.  .  .  .  They  speak 
to  me  constantly ;  they  are  now  speaking  to  me.  ...  I  know  what 
it  is  to  take  an  oath;  my  catechism  taught  me  from  my  infancy  when  it 
is  lawful  to  swear";  he  was  then  sworn,  and  gave  a  perfectly  con- 
nected and  rational  account  of  a  transaction  which  he  reported  himself 
to  have  witnessed ;  he  was  in  some  doubt  as  to  the  day  of  the  week  on 
which  it  took  place,  and  said:  "These  creatures  insist  upon  it  it  was 
Tuesday  night,  and  I  think  it  was  Monday.  .  .  .  The  spirits  assist 
me  in  speaking  of  the  date;  I  thought  it  was  Monday,  and  they  told 
me  it  was  Christmas  Eve, — Tuesday ;  but  I  was  an  eye-witness" ;  the 
defence  contended  that  the  witness  was  non  compos  mentis,  and  that 
as  soon  as  any  unsoundness  of  mind  is  manifested  in  a  witness,  he 
ought  to  be  rejected  as  incompetent;  the  Court  of  Criminal  Appeal 
negatived  this.  Campbell,  L.  C.  J. :  "It  has  been  argued  that  any  par- 
ticular delusion,  commonly  called  monomania,  makes  a  man  inadmis- 
sible. This  would  be  extremely  inconvenient  in  many  cases  in  proof 
either  of  guilt  or  innocence ;  it  might  also  cause  serious  difficulties  in 
the  management  of  lunatic  asylums.  I  am,  therefore,  of  opinion  that 
the  judge  must,  in  all  such  cases,  determine  the  competency  and  the 
jury  the  credibility  .  .  .  The  rule  which  has  been  contended  for 
would  exclude  the  testimony  of  Socrates,  for  he  had  one  spirit  always 
prompting  him."  Talfourd,  J.:  "It  would  be  very  disastrous  if  mere 
delusions  were  held  to  exclude  a  witness.  Some  of  the  greatest  and 
wisest  of  mankind  have  had  particular  delusions."  ^ 

I — Typical    statutes    affecting    this    topic  reason.     The  true  reason  for  not  admitting 

will   be   found  post,   in   the   Appendix.  the    testimony    of    a    person    non    compos 

2 — Walker,  J.,  in  Worthington  v.  Men-  mentis  in  any  case  is  because  his  malady 
ser,  96  Ala.  310,  11  So.  72  (1892):  involves  such  a  want  or  impairment  of 
"One's  infirmity  may  be  such  as  to  render  faculty  that  events  are  not  correctly  im- 
it  expedient  to  place  him  under  guardian-  pressed  on  his  mind,  or  are  not  retained 
ship,  and  even  to  subject  him  to  personal  in  his  memory,  or  that  he  does  not  under- 
restraints,  and  yet  he  may  be  fully  com-  stand  his  responsibility  as  a  witness.  When 
petent  to  understand  the  nature  of  an  the  reason  for  the  exclusion  of  the  wit- 
oath,  to  observe  facts  correctly,  and  to  ness  does  not  exist,  he  should  be  per- 
relate     them    intelligently    and    truly.       A  mitted    to   testify." 

sweeping  rule  of  disqualification  which  ex-  Compare  the  authorities  cited  in  W.,  §5 

eludes   such    a   person    as    a   witness   would  492-497,    and    the   statutes   quoted   post,    in 

be    arbitrary    and    unsupported    by    sound  .the    Appendix. 


No.  61.  INSANITY  ;  INFANCY,  77 

WALKER'S  TRIAL  (1794). 

23  How.  St.  Tr.  II5S- 

Re-examination  of  Thomas  Dunn,  an  informer:  Dunn  (answering 
a  question,  to  explain  his  past  behavior)  :  "I  went  there  when  I  was 
intoxicated,  the  same  as  I  am  now."  Mr.  Tustice  Heath  : 
"  "How  long  have  you  been  intoxicated?"  "Not  very  long;  I  have 
my  recollection  about  me,  though  it  may  seem  to  the  Court  that  I  may  be 
ill  or  may  not."  "Were  you  intoxicated  when  you  gave  your  evidence 
just  now?"  "I  was  not.  .  .  .  Drunk  or  sober,  I  will  speak  the 
truth."  Mr.  Justice  Heath  :  "I  do  not  know  that  we  can  examine  a 
man  that  is  drunk" ;  the  counsel  for  the  prosecution,  Mr.  Law,  pro- 
ceeded to  ask  further  questions ;  Mr.  Justice  Heath  :  "How  can  you, 
Mr.  Law,  examine  him  after  he  has  told  you  he  is  intoxicated?  He 
has  made  himself  so  exceedingly  drunk,  it  is  impossible  to  examine 
him";  but  the  cross-examiner,  Mr.  Erskine,  was  allowed  to  proceed.^ 


REX  V.   BRASIER    (1779). 

I  Leach  Crown  Law,  4th  ed.,  ipp. 

This  was  a  case  reserved  for  the  opinion  of  the  twelve  judges  by 
Mr.  Justice  Buller,  at  the  Spring  Assizes  for  Reading,  in  the  year  1779, 
on  the  trial  of  an  indictment  for  an  assault  with  intent  to  com- 
mit  a  rape  on  the  body  of  Mary  Harris,  an  infant  under  seven 
years  of  age.  "The  judges  assembled  at  Serjeants'-Inn  Hall,  29th 
April,  1779,  were  unanimously  of  opinion,  that  no  testimony  whatever 
can  be  legally  received  except  upon  oath ;  and  that  an  infant,  though 
under  the  age  of  seven  years,  may  be  sworn  in  a  criminal  prosecution, 
provided  such  infant  appears,  on  strict  examination  by  the  Court,  to 
possess  a  sufficient  knowledge  of  the  nature  and  consequences  of  an 
oath,  for  there  is  no  precise  or  fixed  rule  as  to  the  time  within  which 
infants  are  excluded  from  giving  evidence ;  but  their  admissibility  depends 
upon  the  sense  and  reason  they  entertain  of  the  danger  and  im- 
piety of  falsehood,  which  is  to  be  collected  from  their  answers  to  ques- 
tions propounded  to  them  by  the  Court;  but  if  they  are  found  incompe- 
tent to  take  an  oath,  their  testimony  cannot  be  received."  * 

3 — Compare  the  authorities  cited  in  W.,  of    the   obligation    of    an    oath.      As    many 

§  499-  of    these    matters    cannot    be    photographed 

4 — Brewer,  J.,  in   Wheeler  v.   U.  S.,   159  into    the    record,    the    decision    of   tlic    trial 

U.    S.    523,   16   Sup.  93    (1895):      "The   de-  judge  will  not  be  disturbed  on  review,  un- 

cision  •   of     this     question     rests     primarily  less    from    that    which    is    preserved    it    is 

with    the    trial    judge,    who    sees    the    pro-  clear    that    it    was    erroneous." 
posed   witness,   notices  his  manner,   his  ap-  Compare   the   statutes   cited   post,   in    the 

parent    possession    or    lack    of    intelligence.  Appendix;  also  the  authorities  cited  in  W., 

and   may   resort   to  any  examination   which  §§  505-508;     and    the    rules    for    Oath — ca- 

will    tend   to   disclose   his   capacity   and   in-  pacity,    post,    No.    376. 
telligence,    as    well    as    his    understanding 


78  TESTIMONIAL  QUALIFICATIONS.  No.  62. 

Chief  Baron  Gilbert,  Evidence,  ijp  {ante  1727)  :  "The  second  sort 
of  persons  excluded  from  testimony  for  want  of  integrity  are  such  as 
are  stigmatized.  Now  there  are  several  crimes  that  so  blemish 
that  the  party  is  ever  afterwards  unfit  to  be  a  witness,  .  .  .  and 
the  reason  is  very  plain,  because  every  plain  and  honest  man  affirming 
the  truth  of  any  matter  under  the  sanction  and  solemnity  of  an  oath  is 
entitled  to  faith  and  credit,  .  .  .  but  where  a  man  is.  convicted  of  false- 
hood and  other  crimes  against  the  common  principles  of  honesty  and 
humanity,  his  oath  is  of  no  weight,  because  he  hath  not  the  credit  of  a 
witness,  .  .  .  and  he  is  rather  to.  be  intended  as  a  man  profligate  and 
abandoned  than  one  under  the  sentiments  and  convictions  of  those  prin- 
ciples that  teach  probity  and  veracity." 


Professor  Simon  Greenleaf,  Evidence,  %%  373-378  (1842):  "It  is  a 
point  of  no  small  difficulty  to  determine  precisely  the  crimes  which  ren- 
der the  perpetrator  thus  infamous.  The  rule  is  justly  stated  to  re- 
'*  quire,  that  the  publicum  judicium  must  be  upon  an  offence,  imply- 
ing such  a  dereliction  of  moral  principle,  as  carries  with  it  a  conclusion 
of  a  total  disregard  to  the  obligation  of  an  oath.'  But  the  difficulty  lies 
in  the  specification  of  those  offences.  The  usual  and  more  general 
enumeration  is,  treason,  felony,  and  the  crimen  falsi.  In  regard  to  the 
two  former,  as  all  treasons,  and  almost  all  felonies  were  punishable 
with  death,  it  was  very  natural  that  crimes,  deemed  of  so  grave  a 
character  as  to  render  the  offender  unworthy  to  live,  should  be  consid- 
ered as  rendering  him  unworthy  of  belief  in  a  Court  of  Justice.  But 
the  extent  and  meaning  of  the  term,  crimen  falsi,  in  our  law,  is  no- 
where laid  down  with  precision.  In  the  Roman  Law,  from  which  we 
have  borrowed  the  term,  it  included  not  only  forgery,  but  every  species 
of  fraud  and  deceit.  If  the  offence  did  not  fall  under  any  other  head, 
it  was  called  stellionatus,  which  included  'all  kinds  of  cozenage  and 
knavish  practice  in  bargaining.'  But  it  is  clear,  that  the  Common  Law 
has  not  employed  the  term  in  this  extensive-  sense,  when  applying  it  to 
the  disqualification  of  witnesses ;  because  convictions-  for  many  ofifences, 
clearly  belonging  to  the  crimen  falsi  of  the  civilians,  have  not  this  ef- 
fect. Of  this  sort  are  deceits  in  the  quality  of  provisions,  deceits  by 
false  weights  and  measures,  conspiracy  to  defraud  by  spreading  false 
news,  and  several  others.  On  the  other  hand,  it  has  been  adjudged, 
that  persons  are  rendered  infamous,  and  therefore  incompetent  to  tes- 
tify, by  having  been  convicted  of  forgery,  perjury,  subornation  of  per- 
jury, suppression  of  testimony  by  bribery,  or  conspiracy  to  procure  the 
absence  of  a  witness,  or  other  conspiracy,  to  accuse  one  of  a  crime  and 
barratry.  And  from  these  decisions  it  may  be  deduced,  that  the 
crimen  falsi  of  the  Common  Law  not  only  involves  the  charge  of  false- 
hood, but  also  is  one  which  may  injuriously  affect  the  administration  of 
justice,  by  the  introduction  of  falsehood  and  fraud.  At  least  it  may 
be  said,  in  the  language  of  Sir  William  Scott,  'so  far  the  law  has  gone. 


No.  64.  INFAMY.  79 

affirmatively;  and  it  is  not  for  me  to  say  where  it  should  stop,  nega- 
tively.'  .    .    . 

"We  have  already  remarked,  that  no  person  is  deemed  infamous  in 
law,  until  he  has  been  legally  found  guilty  of  an  infamous  crime.  But 
the  mere  verdict  of  a  Jury  is  not  sufficient  for  this  purpose ;  for  it  may 
be  set  aside,  or  the  judgment  may  be  arrested,  on  motion  for  that 
purpose.  It  is  the  judgrncnt,  and  that  only,  which  is  received  as  the 
legal  and  conclusive  evidence  of  the  party's  guilt,  for  the  purpose  of 
rendering  him  incompetent  to  testify.  And  it  must  appear  that  the 
judgment  was  rendered  by  a  Court  of  competent  jurisdiction.  Judg- 
ment of  outlawry  for  treason  or  felony  will  have  the  same  effect;  for 
the  party,  in  submitting  to  an  outlawry,  virtually  confesses  his  guilt ; 
and  so  the  record  is  equivalent  to  a  judgment  upon  confession.  If  the 
guilt  of  the  party  should  be  shown  by  oral  evidence,  and  even  by  his 
own  admission  (though  in  neither  of  these  modes  can  it  be  proved,  if 
the  .evidence  be  objected  to),  or,  by  his  plea  of  guilty,  whch  has  not 
been  followed  by  a  judgment,  the  proof  does  not  go  to  the  competency 
of  the  witness,  however  it  may  affect  his  credibility. 

"The  disability  thus  arising  from  infamy  may,  in  general,  be  re- 
moved in  two  modes;  (i)  by  reversal  of  the  judgment;  (2)  by  a  par- 
don; [and  (3)  by  serving  the  sentence]."  ° 


VANCE  v.  STATE  (1902). 

70  Ark.  2-J2,  68  S.  W.  S7- 

RiDDicK,  J. :  "We  take  this  occasion,  also,  to  call  attention  to  the 
backward  state  of  the  law  in  this  State  in  reference  to  the  competency 
of  witnesses  convicted  of  felony.  The  statutes  which  render 
such  witnesses  incompetent  belong  to  a  class  of  antiquated  laws 
which  suppress  evidence,  and  which  the  wisdom  of  modern  ages  has 
discredited  and  shown  to  be  unreasonable  and  injurious.  They  are  of 
the  same  class  as  the  laws  which  formerly  forbade  the  parties  to  the 
suit  from  testifying,  and  closed  the  mouth  of  the  defendant  on  trial  for 
his  life,  and  should  be  repealed,  as  these  laws  have  been  repealed,  for 
inch,  matters  should  go  only  to  the  credit  or  impeachment  of  the  wit- 
ness, not  to  the  exclusion  of  his  testimony.  There  is  no  valid  reason 
why  a  person  who  knows  anything  material  to  the  decision  of  a  case 
on  trial  should  not  be  permitted  to  tell  it,  whatever  may  be  his  char- 
acter, the  jury  being  allowed  to  weigh  his  testimony  in  connection  with 
his  character  and  antecedents.  These  statutes  not  only  suppress  evi- 
dence, but  the  application  of  them  often  presents  difficult  and  doubtful 
questions,  which,  being  decided  in  the  hurry  of  trial,  frequently  results 
on    appeal   in    reversals,    and    in   this   way   justice    is    often    thwarted. 

5 — Compare   the   authorities  cited  in   W.,  §§  519-523. 


80  TESTIMONIAL  QUALIFICATIONS.  No.  65. 

There  are  very  few  States  that  now  retain  such  laws  and  we  think  our 
legislators  might  well  consider  whether  they  should  not  be  repealed  in 
this  State  also."^ 


Topic  II:     Experiential  Capacity. 

KELLEY  V.  RICHARDSON   (1888). 

dp  Mich.  4s6,  57  N.  W.  514. 

Campbell^  J. :     "The  phrase  'expert  testimony'  is  not  entirely  for- 
tunate as  designed  to  cover  all  cases  where  a  witness  may  give  his 
opinions.  .    .    .    [First,   as   to   impressions   of   cold  or   heat,   and 
"  the  like,]   any  person  can  give  such  impressions  without  special 

experience  or  special  intelligence.  Beyond  these  every-day  matters, 
known  to  all  men,  are  things  which  most,  if  not  all  persons  can  be- 
come qualified  to  judge  by  more  or  less  opportunities  of  observation, 
local  or  habitual,  but  which  require  no  peculiar  intelligence.  [Sec- 
ondly,] then,  there  are  branches  of  business  or  occupations  where  some 
intelligence  is  requisite  for  judgment,  but  opportunities  and  habits  of 
observation  must  be  combined  with  some  practical  experience.  This 
seems  to  be  the  beginning  or  lower  grade  of  what  may  properly  be 
termed  'experts,' — a  word  meaning  only  the  acquisition  of  certain 
habits  of  judgment,  based  on  experience  or  special  observation.  And 
the  scale  rises  as  the  qualifications  become  nicer  and  require  greater 
capacity  or  knowledge  and  experience,  until  it  reaches  scientific  ob- 
servers and  practitioners  in  arts  and  sciences  requiring  peculiar  and 
thorough  special  training." 


VANDER  DONCKT  v.  THELUSSON  (1849). 

8  C.  B.  812,  824. 

Issue  as  to  the  existence  of  a  law  of  Belgium  requiring  th-e  place  of 
payment  of  a  promissory  note  to  be  the  place  of  presentment.  The 
plaintiff  called  a  witness  named  De  Keyser,  who  stated  that  he 
""  was  a  native  of  Belgium ;  that  he  had  formerly  carried  on  the 
business  of  a  merchant  and  commissioner  in  stocks  and  bills  of  ex- 
change at  Brussels,  but  was  now  an  hotel-keeper  in  London;  and  that 
he  was  well  acquainted  with  the  Belgian  law  upon  the  subject  of  bills 
and  notes.  On  the  part  of  the  defendant,  it  was  objected  that  M.  De 
Keyser  was  not  an  admissible  witness  to  prove  the  foreign  law,  he 
neither  being  a  lawyer,  nor  a  person  who  was  bound,  by  reason  of 
his  holding  any  office,  to  have  a  knowledge  of  the  law  of  Belgium. 

6 — Tj'pical   statutes  altering  the  common  law    rule    will    be    found    post,    in    the    Ap- 
pendix. 


No.  67,  EXPERIENTIAL  CAPACITY.  81 

Maule,  J. :  "The  question  is  whether  he  is  a  person  having  spe- 
cial and  peculiar  means  of  knowledge  of  the  law  of  Belgium  with 
regard  to  bills  of  exchange  and  promissory  notes,  one  whose  busi- 
ness it  was  to  attend  to  and  make  himself  acquainted  with  the 
subject.  I  think  that,  inasmuch  as  he  had  been  carrying  on  a  busi- 
ness which  made  it  his  interest  to  take  cognizance  of  the  foreign  law, 
he  does  fall  within  the  description  of  an  expert.  Applying  one's  com- 
mon sense  to  the  matter,  why  should  not  persons  who  may  be  reason- 
ably supposed  to  be  acquainted  with  the  subject — though  they  have  not 
filled  any  official  appointment,  such  as  judge  or  advocate  or  solicitor — 
be  deemed  competent  to  speak  upon  it?  .  .  .  All  persons,  I  think,  who 
practise  a  business  or  profession  which  requires  them  to  possess  a  cer- 
tain knowledge  of  the  matter  in  hand  are  experts,  so  far  as  experts 
are  required."^ 


EVANS  V.   PEOPLE    (1858). 

12  Mich.  21,  5(5. 

Manslaughter;  an  issue  was  whether  the  deceased  died  of  erysi- 
pelas or  of  injuries  inflicted  by  the  accused.  Campbell,  J.:  "The  re- 
maining ground  of  error  alleged  is,  that  one  John  Hendershot, 
"'  not  being  shown  to  possess  any  special  qualifications,  was  al- 
lowed to  answer  a  question  involving  an  inquiry  of  medical  science, 
having  an  important  bearing  upon  the  cause  of  Balch's  death.  It 
had  been  shown  that  he  died  of  erysipelas,  claimed  by  the  prosecution 
to  have  resulted  from  the  injuries  inflicted  by  Evans.  The  defense 
had  introduced  medical  witnesses,  whose  evidence  tended  to  prove  the 
existence  of  that  disease  in  an  epidemic  form  in  Balch's  neighborhood, 
previous  to  his  visit  to  Grand  Rapids,  where  he  died  two  days  after 
the  assault  upon  him.  Hendershot  was  called  as  a  rebutting  witness, 
and  was  asked,  under  objection,  whether  there  was  'any  case  of  ery- 
sipelas about  the  neighborhood  of  the  residence  of  the  deceased,  before 
his  coming  to  Grand  Rapids,  in  February  last;'  the  witness  answered, 
*No,  sir;  neither  before  nor  since;  no  sickness  within  five  or  six  miles 
of  Coban  Balch's  residence  during  the  month  of  February,  nor  until 
after  that  time.'  The  greatest  difficulty  encountered,  in  determining 
questions  of  competency  of  testimony  on  subjects  connected  more 
or  less  with  medical  science,  is  in  ascertaining  how  far  it  is  safe  to 
suppose  unprofessional  observers  are  able  to  form  a  reliable  judgment. 
There  are  some  simple  disorders  which  all  persons  are  familiar  with. 
Others  require  the  very  highest  degree  of  medical  skill  to  distinguish 
them  from  disorders  having  some  resembling  appearances  or  symptoms. 
...  In  the  view  of  evidence  now  entertained  by  the  best  authorities, 
it  is  settled  that  a  jury  .should  be  allowed  to  have  placed  before  them 

7 — Compare   the  autliorities  cited  in   W.,   §  564. 


82  TESTIMONIAL  QUALIFICATIONS.  No.  67. 

all  the  means  of  knowledge  which  can  be  had  without  involving  the 
danger  of  leading  them  -to  form  conclusions  not  based  on  solid  truth 
and  not  reliable  as  reasonably  certain.  .  .  .  Circumstances  may  make 
whole  communities  familiar  with  diseases  not  known  elsewhere,  .  .  . 
and  it  often  happens  that  persons  having  no  general  skill  become  very 
familiar  with  particular  subjects.  It  would  be  very  unwise  to  exclude 
such  evidence  merely  because  the  range  of  the  witness'  knowledge  is 
limited.  There  are  as  many  grades  of  knowledge  and  ignorance  in  the 
professions  as  out  of  them.  The  only  safe  rule  in  any  of  these  cases 
is  to  ascertain  the  extent  of  the  witness'  qualifications,  and  within  their 
range  to  permit  him  to  speak.  Cross-examination  and  the  testimony  of 
others  will  here,  as  in  all  other  cases,  furnish  the  best  means  of  test- 
ing his  value.  The  circumstances  of  the  case,  therefore,  must  be  looked 
at  to  determine  the  admissibility,  not  only  of  the  question  put  to  Hen- 
dershot,  but  also  of  his  answer.  As  he  was  not  examined  concerning 
his  knowledge  of  erysipelas,  or  of  diseases  generally,  he  could  not  be 
asked  such  a  question,  if  the  issue  materially  required  from  the  witness 
any  such  knowledge.  .  .  .  But  Hendershot's  answer,  denying  the  exist- 
ence of  any  disease  whatever  in  that  vicinity,  stands  on  a  different 
footing.  The  difference  between  health  and  any  sickness  whatever 
can  hardly  be  regarded  as  open  only  to  medical  knowledge;  and  his 
contradiction  of  the  medical  testimony  is  a  contradiction  of  common 
facts,  and  not  of  science."* 


Topic  III :     Partisanship,  as  Affecting  Capacity. 

Chief  Baron  Gilbert,  Evidence,  119  (ante  1727))  Lofft's  ed.  223: 
"Where  a  man,  who  is  interested  in  the  matter  in  question,  would 
also  prove  it,  it  rather  is  a  ground  for  distrust,  than  any  just 
"'*  cause  of  belief ;  for  men  are  generally  so  short-sighted,  as  to  look 
to  their  own  private  benefit,  which  is  near  them,  rather  than  to  the 
good  of  the  world,  'which,  though  on  the  sum  of  things  really  best  for 
the  individual,'  is  more  remote;  therefore,  from  the  nature  of  human 
passions  and  actions,  there  is  more  reason  to  distrust  such  a  biased 
testimony  than  to  believe  it.  It  is  also  easy  for  persons,  who  are  preju- 
diced and  prepossessed,  to  put  false  and  unequal  glosses  upon  what 
they  give  in  evidence ;  and  therefore  the  law  removes  them  from  testi- 
mony, to  prevent  their  sliding  into  perjury;  and  it  can  be  no  injury  to 
truth  to  remove  those  from  the  jury,  whose  testimony  may  hurt  them- 
selves, and  can  never  induce  any  rational  belief.  If  it  be  objected, 
that  interest  in  the  matter  in  dispute  might,  from  the  bias  it  creates,  be 
an  exception  to  the  credit,  but  that  it  ought  not  to  be  absolutely  so  to 

8 — Compare  the  authorities  cited  in  W.,    §  568;    and    the    doctrine    of    the    Opinion 
Rule    post.  No.   418. 


No.  69.  INTEREST.  83 

the  competency,  any  more  than  the  friendship  or  enmity  of  a  party, 
whose  evidence  is  offered,  towards  either  of  the  parties  in  the  cause, 
or  many  other  considerations  hereafter  to  be  intimated;  the  general 
answer  may  be  this,  that  in  point  of  authority  no  distinction  is  more 
absolutely  settled;  and  in  point  of  theory,  the  existence  of  a  direct 
interest  is  capable  of  being  precisely  proved;  but  its  influence  on  the 
mind  is  of  a  nature  not  to  discover  itself  to  the  jury;  v.-hence  it  hath 
been  held  expedient  to  adopt  a  general  exception,  by  which  witnesses 
so  circumstanced  are  free  from  temptation,  and  the  cause  not  exposed 
to  the  hazard  of  the  very  doubtful  estimate,  what  quantity  of  interest 
in  the  question,  in  proportion  to  the  character  of,  the  witness,  in  any 
instance,  leaves  his  testimony  entitled  to  belief.  Some,  indeed,  are 
incapable  of  being  biased  even  latently  by  the  greatest  interest;  many 
would  betray  the  most  solemn  obligation  and  public  confidence  for  an 
interest  very  inconsiderable.  An  universal  exclusion,  where  no  line 
short  of  this  could  have  been  drawn,  preserves  infirmity  from  a  snare, 
and  integrity  from  suspicion ;  and  keeps  the  current  of  evidence,  thus 
far  at  least,  clear  and  uninfected." 


Professor  Simon  Greenleaf,  Evidence,  §  421  (1842):  "In  regard 
to  the  time  of  taking  the  objection  to  the  competency  of  a  witness,  on 
the  ground  of  interest,  it  is  obvious  that,  from  the  preliminary  na- 
^^  ture  of  the  objection,  it  ought  in  general  to  be  taken  before  the  wit- 
ness is  examined  in  chief.  If  the  party  is  aware  of  the  existence  of  the 
interest,  he  will  not  be  permitted  to  examine  the  witness,  and  afterwards 
to  object  to  his  competency,  if  he  should  dislike  his  testimony.  He 
has  his  election,  to  admit  an  interested  person  to  testify  against  him, 
or  not;  but  in  this,  as  in  all  other  cases,  the  election  must  be  made 
as  soon  as  the  opportunity  to  make  it  is  presented ;  and,  failing  to 
make  it  at  that  time,  he  is  presumed  to  have  waived  it  forever.  But 
he  is  not  prevented  from  taking  the  objection  at  any  time  during  the 
trial,  provided  it  is  taken  as  soon  as  the  interest  is  discovered.  Thus, 
if  discovered  during  the  examination  in  chief  by  the  plaintiff,  it  is  not 
too  late  for  the  defendant  to  take  the  objection.  But  if  it  is  not  dis- 
covered xmtil  after  the  trial  is  concluded,  a  new  trial  will  not,  for  that 
cause  alone,  be  granted ;  unless  the  interest  was  known  and  concealed 
by  the  party  producing  the  witness.  The  rule  on  this  subject,  in  crim- 
inal and  civil  cases,  is  the  same.  Formerly,  it  was  deemed  necessary 
to  take  the  objection  to  the  competency  of  a  witness  on  the  z'oir  dire; 
and  if  once  sworn  in  chief,  he  could  not  afterwards  be  objected  to,  on 
the  ground  of  interest.  But  the  .strictness  of  this  rule  is  relaxed :  and 
the  objection  is  now  usually  taken  after  he  is  sworn  in  chief,  but 
previous  to  his  direct  examination.  It  's  in  the  discretion  of  the  Judge 
to  permit  the  adverse  party  to  cross-examine  the  witness,  as  to  his  inter- 
est, after  he  has  been  examined  in  chief:  but  the  usual  course  is  not 
to  allow  questions  to  be  asked  upon  the  cross-examination,  which  prop- 


84  TESTIMONIAL  QUALIFICATIONS.  No.  69. 

erly  belong  only  to  an  examination  upon  the  voir  dire.  But  if,  not- 
withstanding every  ineffectual  endeavor  to  exclude  the  witness  on  the 
ground  of  incompetency,  it  afterwards  should  appear  incidentally,  in 
the  course  of  the  trial,  that  the  witness  is  interested,  his  testimony  will 
be  stricken  out,  and  the  jury  will  be  instructed  wholly  to  disregard  it. 
The  rule  in  equity  is  the  same  as  at  law;  and  the  principle  applies 
with  equal  force  to  testimony  given  in  a  deposition  in  writing,  and  to 
an  oral  examination  in  court.  In  either  case,  the  better  opinion  seems 
to  be,  that  if  the  objection  is  taken  as  soon  as  may  be  after  the  inter- 
est is  discovered,  it  will  be  heard ;  but  after  the  party  is  in  mora,  it 
comes  too  late.  One  reason  for  requiring  the  objection  to  be  made 
thus  early  is,  that  the  other  party  may  have  opportunity  to  remove  it 
by  a  release;  which  is  always  allowed  to  be  done,  when  the  objection 
is  taken  at  any  time  before  the  examination  is  completed.  It  is  also 
to  be  noted  as  a  rule,  applicable  to  all  objections  to  the  reception  of 
evidence,  that  the  ground  of  objection  must  be  distinctly  stated  at  the 
time,  or  it  will  be  held  vague  and  nugatory." 


Jeremy  Bentham,  Rationale  of  Judicial  Evidence,  h.  IX,  pt.  Ill, 
X.  Ill  (Bowring's  ed.  vol.  VII.  pp.  393  ff.)  :  "In  the  view  taken  of 
the  subject  by  the  man  of  law, — to  judge  of  trustworthiness,  or 
*^  at  least,  of  fitness  to  be  heard,  interest  or  no  interest  is  (flagrant 
and  stigmatized  improbity  apart)  the  only  question.  .  .  .  Between  two 
opposite  propositions,  both  of  them  absurd  in  theory,  because  both  of 
them  notoriously  false  in  fact,  the  choice  is  not  an  easy  one.  But  i^^ 
a  choice  were  unavoidable,  the  absurdity  would  be  less  gross  to  say: 
'No  man  who  is  exposed  to  the  action  of  interest  will  speak  false,' — 
than  to  say,  'No  man  who  is  exposed  to  the  action  of  interest  will  speak 
true.'  Of  a  man's,  of  every  man's,  being  subject  to  the  action  of  divers 
mendacity-restraining  motives,  you  may  be  always  sure;  of  his  being 
subjected  to  the  action  of  any  mendacity-promoting  motives,  you  can- 
not be  always  sure.  But  suppose  you  were  sure.  Does  it  follow,  be- 
cause there  is  a  motive  of  some  sort  prompting  a  man  to  lie,  that  for 
that  reason  he  will  lie?  That  there  is  danger  in  such  a  case,  is  not 
to  be  disputed;  but  does  the  danger  approach  to  certainty?  This  will 
not  be  contended.  If  it  did,  instead  of  shutting  the  door  against  some 
witnesses,  you  ought  not  to  open  it  to  any.  An  interest  of  a  certain 
kind  acts  upon  a  man  in  a  direction  opposite  to  the  path  of  duty :  but 
will  he  obey  the  impulse?  That  will  depend  upon  the  forces  tending  to 
confine  him  to  that  path — upon  the  prevalence  of  the  one  set  of  oppo- 
site forces  or  the  other.  All  bodies  on  or  about  the  earth  tend  to  the 
centre  of  the  earth ;  yet  all  bodies  are  not  there.  All  mountains  have 
a  tendency  to  fall  into  a  level  with  the  plains ;  yet,  notwithstanding, 
there  are  mountains.  All  waters  seek  a  level;  yet,  notwithstand- 
ing, there  are  waves.  .  .  .  Any  interest,  interest  of  any  sort  and  quan- 
tity, sufficient  to  produce  mendacity?     As  rational  would  it  be  to  say. 


No.  70,  INTEREST.  85 

any  horse  or  dog,  or  flea,  put  to  a  waggon,  is  sufficient  to'  move  it :  to 
move  it,  and  set  it  a  running  at  the  pace  of  a  mail-coach.  .  .  .  Take 
what  everybody  understands,  money:  for  precision's  sake,  take  at  once 
fio;  the  £io  of  the  day,  whatever  be  the  ratio  of  it  to  the  £io  of  yes- 
terday: to  the  present  purpose,  depreciation  will  not  affect  it.  This 
£io,  will  its  action  be  the  same  in  the  bosom  of  Croesus  as  of  Irus? 
in  the  bosom  of  Diogenes,  as  in  that  of  Catiline?  No  man  will  fancy 
any  such  thing  for  a  moment :  no  man,  unless,  peradventure,  it  may 
have  happened  to  him  to  have  been  stultified  by  legal  science.  ...  In 
the  eyes  of  the  English  lawyer,  one  thing,  and  one  thing  only,  has  a 
value:  that  thing  is  money.  On  the  will  of  man,  if  you  believe  the 
English  lawyer,  one  thing,  and  one  thing  only,  has  influence:  that 
thing  is  money.  Such  is  his  system  of  psychological  dynamics.  If  you 
will  believe  the  man  of  law,  there  is  no  such  thing  as  the  fear  of  God; 
no  such  thing  as  regard  for  reputation ;  no  such  thing  as  fear  of  legal 
punishment;  no  such  thing  as  ambition;  no  such  thing  as  the  love  of 
power ;  no  such  thing  as  filial,  no  such  thing  as  parental,  affection ; 
no  such  thing  as  party  attachment ;  no  such  thing  as  party  enmity ;  no 
such  thing  as  public  spirit,  patriotism,  or  general  benevolence;  no  such 
thing  as  compassion ;  no  such  thing  as  gratitude ;  no  such  thing  as 
revenge.  Or  (what  comes  to  the  same  thing)  weighed  against  the  in- 
terest produced  by  the  value  of  a  farthing,  the  utmost  mass  of  inter- 
est producible  from  the  action  of  all  those  affections  put  together,  van- 
ishes in  the  scale.  .  .  .  For  a  farthing — for  the  chance  oi  gaining  the 
incommensurable  fraction  of  a  farthing,  no  man  upon  earth,  no  English- 
man at  least,  that  would  not  perjure  himself.  This  in  Westminster 
Hall  is  science :  this  in  Westminster  Hall  is  law.  According  to  the 
prints  of  the  day,  £180.000  was  the  value  of  the  property  left  by  the  late 
Duke  of  Bridgewater.  For  a  fraction  of  a  farthing,  Aristides,  with 
the  duke's  property  in  his  pocket,  would  have  perjured  himself.  One 
decision  I  meet  with,  that  would  be  amusing  enough,  if  to  a  lover  of 
mankind  there  could  be  anything  amusing  in  injustice.  A  man  is 
turned  out  of  court  for  a  liar,  not  for  any  interest  that  he  has,  but  for 
one  which  he  supposed  himself  to  have,  the  case  being  otherwise.  In- 
stead of  turning  the  man  out  of  court,  might  not  the  judge  have  con- 
tented himself  with  setting  him  right?  Would  not  the  judge's  opinion 
have  done  as  well  as  a  release?  The  pleasant  part  of  the  story  is, 
that  the  fact  on  which  the  exclusion  is  grounded  could  not  have  been 
true.  For,  before  the  witness  could  be  turned  out  of  court  for  sup- 
posing himself  to  have  an  interest,  he  must  have  been  informed  of  his 
having  none:  consequently,  at  the  time  when  he  was  turned  out,  he 
must  have  ceased  to  suppose  that  he  had  any.  Another  offence  for 
which  I  find  a  man  pronounced  a  liar,  seems  to  make  no  bad  match 
with  the  foregoing :  it  was  for  being  a  man  of  honour.  'Oh  ho !  you 
are  a  man  of  honour,  are  you?  Out  with  you,  then — you  have  no 
business  here.'     Being  asked  whether  he  did  not  look  upon  himself  as 


86  TESTIMONIAL  QUALIFICATIONS,  No.  70. 

bound  in  honour  to  pay  costs  for  the  party  who  called  him,  supposing 
him  to  lose  the  cause,  and  whether  such  was  not  his  intention, — his 
answer  was  in  the  affirmative,  and  he  was  rejected.  It  was  taken  for 
granted  that  he  would  be  a  liar.  Why?  Because  he  had  shown  he 
would  not  be  one.  .  .  .  Exceptions,  self-contradictions,  spring  up  every- 
where under  their  feet :  exceptions,  and,  as  far  as  they  extend,  all  reas- 
onable. Reasonable,  and  why?  Because,  the  rule  itself  being  funda- 
mentally absurd,  everything  must  be  reasonable  which  goes  to  narrow 

its    extent V.  Exception    the    fifth : —  ...  Question :    A     man 

who  at  the  time  of  his  examination  has  an  interest  in  the  cause, — is  he 
an  admissible  witness,  he  having  had  no  interest  at  the  time  of  the 
supposed  fact?  Decision  in  the  affirmative.  Because  he  was  under  no 
temptation  when  he  had  not  to  speak,  therefore,  when  he  is  to  speak, 
knowing  him  to  be  under  temptation,  you  are  to  suppose  him  not  to 
be  so.  Just  as  if  a  pilot  were  to  say  in  a  storm,  the  vessel  among  the 
breakers,  Sit  still,  there  is  no  danger.  Why  so?  Because  yesterday  it 
was  a  dead  calm.  VI.  Exception  the  sixth:  Voire  dire.  Truth  ex- 
pected, in  spite  of  interest.  .  .  .  When  a  witness  produced  against  you 
"has  an  interest  in  the  business  (meaning  always  a  pecuniary  interest), 
and  you  cannot  get  other  evidence  of  it,  or  do  not  care  to  be  at  the 
expense,  you  address  yourself  to  the  witness  himself,  and  ask  him 
whether  he  has  or  no :  if  he  speaks  truth,  he  is  turned  out ;  if  he 
perjures  himself,  he  is  heard.  This  operation  is  called  examining  a 
witness  upon  the  voire  dire.  Voire  dire  is,  in  law  French,  to  tell  the 
truth.  A  man  might  look  a  good  while,  even  in  the  vocabulary  of 
English  law,  before  he  would  find  so  silly  a  one.  'Come,  my  honest 
friend,  I  am  going  to  put  some  questions  to  you.  To  the  first  of  them, 
the  court  expects  you  to  speak  the  truth ;  to  the  others,  as  you  please'  "^ 


STEPHENS  V.  BERN  AYS  (1890). 

District  Court  of  the  United  States  for  the  Eastern  District  of  Missouri. 

42  Fed.  488. 

Thayer,  J. :     "The  testimony  of  C.  C.  Crecilius,  taken  in  connection 
with  other  testimony  offered  by  the  plaintiff,  clearly  shows  that  the  de- 
ceased assigned  his  stock  in  the  insolvent  bank  to  Crecilius,  the 
7"|  ...  ... 

•  cashier,  with  intent  to  evade  his  liability  as  a  shareholder.     Ac- 

cording to  the  testimony  of  Crecilius,  the  deceased  had  not  only  been 

I — English  Common  Law  Practice  Com-  inability     to     avail     themselves     of    proof 

wissioners,    Second    Report,     1853,    p.     10:  which,    though    morally   conclusive,    was   in 

"It    is   painful   to   contemplate   the   amount  law    inadmissible.       From    the    time,    how- 

of   injustice   which   must  have   taken    place  ever,    when    the    late    Mr.     Bentham    first 

under  the  exclusive  system  of  the  English  turned   the    attention    of  the   public   to   the 

law,    not    only    in    cases    actually    brought  defects  of  the  English  law  of  evidence,  the 

into   court    and    there    wrongly    decided    in  system    of    exclusion    has    been    crumbling 

consequence   of  the  exclusion   of   evidence,  away   before    the   power    of    discussion   and 

but     in     numberless    cases    in     which     the  improved   legislation." 

parties    silently   submitted    to   wrongs   from  New    York    Ccmmissioners    on    Practice 


No.  71.  INTEREST.  87 

advised  before  the  sale  that  the  bank  had  sustained  considerable  losses, 
but  he  declared  at  the  time  of  the  sale  that  his  purpose  in  selling  was 
to  avoid  his  liability  as  a  stockholder.  The  sale  appears  to  have  been 
made  only  two  days  before  the  bank  closed  its  doors,  and  no  change 
took  place  in  the  condition  of  the  bank  in  the  mean  time.  Crecilius 
gave  his  notes  for  the  stock,  instead  of  paying  for  the  same  in  money; 
and  according  to  his  statement  the  notes  were  to  be  surrendered,  and 
the  sale  cancelled,  if  at  the  end  of  sixty  days  the  deceased  was  then 
assured  that  the  bank  was  all  right.  Crecilius  himself  had  little  or  no 
means,  at  the  time  of  the  purchase,  and  was  rendered  utterly  insolvent 
by  the  failure  of  the  bank  two  days  later.  His  object  in  making  the 
purchase  in  question  was  to  withdraw  the  stock  from  the  market,  and 
save  the  credit  of  the  bank,  which  was  then  in  a  precarious  condition. 
These  facts,  most  of  which  were  established  by  the  testimony  of  Cre- 
cilius, warrant  the  conclusion  that  the  pretended  sale  was  and  is  void- 
able as  to  creditors  of  the  insolvent  bank,  who  are  represented  in  this 
proceeding  by  the  receiver. 

"A  question  arises,  however,  and  was  reserved  at  the  trial,  touching 
the  competency  of  Crecilius  to  testify  against  the  executrix  concerning 
transactions  between  himself  and  the  testator.  The  Federal  [Revised] 
Statutes  [of  1878]  provide  (section  858),  that —  'No  witness  shall 
be  excluded  ...  in  any  civil  action  because  he  is  a  party  to  or  inter- 
ested in  the  issue  tried :  provided,  that  in  actions  by  or  against  execu- 
tors, ...  in  which  judgment  may  be  rendered  for  or  against  them, 
neither  party  shall  be  allowed  to  testify  against  the  other  as  to  any 
transaction  with  or  statement  by  the  testator,  .  .  .  unless  called  to 
testify  thereto  by  the  opposite  party.  ...  In  all  other  respects  the 
laws  of  the  State  in  which  the  Court  is  held  shall  be  the  rules  of 
decision  as  to  the  competency  of  witnesses  in  Courts  of  the  United 
States.'  The  State  law  on  the  subject  (section  8918,  Rev.  St.  Mo. 
1889)  provides  that —  'No  person  shall  be  disqualified  as  a  witness  in 
any  civil  suit  ...  by  reason  of  his  interest  in  the  event  of  the  same, 
as  a  party  or  otherwise:  .  .  .  provided  that,  in  actions  where  one  of 
the  original  parties  to  the  contract  or  cause  of  action  in  issue  and  on 
trial  is  dead  or  .  .  .  insane,  the  other  party  to  such  contract  or  cause 
of  action  shall  not  be  admitted  to  testify  ...  in  his  own  favor ;  .  .  . 
and.  where  an  executor  or  administrator  is  a  party,  the  other  party 
shall  not  be  admitted  to  testify  in  his  own  favor,  unless  the  contract 
in  issue  was  originally  made  with  a  person  who  is  living  and  com- 
petent to  testify.' 

and  Pleadings,   First  Report,   1848,  p.   246:  since   the   statute   of   frauds,   that   is,   since 

"England   has   outstripped   us   in   this   most  the     Restoration.        It    places    the    law    of 

necessary    reform.        Five    years     ago,    an  evidence  at  length  upon  a  rational  footing, 

act  of  Parliament  obliterated  the  rule  from  and    makes    its    provisions    consistent    with 

the    laws     of    that    country.     .     .     .     Lord  themselves'." 

Brougham    has    spoken    of    it,    in    the    fol-  Typical    statutes   on   this   subject   will   be 

lowing    language:       'This    is    certainly    the  found    fost,    in    the    Appendix      to      this 

greatest     measure    that    has    been    carried  volume. 
under     the     head     of    judicial       procedure 


88  TESTIMONIAL  QUALIFICATIONS.  No.  71. 

"The  first  clause  of  the  proviso  of  section  8918,  supra,  as  heretofore 
construed  by  the  State  Courts,  has  much  greater  scope  than  the  Federal 
statute  above  referred  to.  Thus,  in  Meier  v.  Thieman  (90  Mo.  434, 
2  S.  W.  Rep.  435),  it  was  held  that  by  the  proviso  in  question  a  person 
was  rendered  incompetent  to  testify  as  to  transactions  with  a  decedent 
in  a  suit  brought  by  his  heirs,  although  the  person  tendered  as  a  wit- 
ness was  not  a  party  to  the  suit.  The  decision  appears  to  be  based  on 
the  ground  that  a  witness,  to  be  excluded  by  the  State  law,  need  not  be 
a  party  to  the  record,  but  will  be  excluded  as  a  witness  to  all  con- 
tracts or  transactions  between  himself  and  a  deceased  person,  when  the 
witness  has  an  interest  in  the  result  of  the  suit,  whether  he  is  or  is  not 
a  party  to  the  record.  Hence  it  is  important  to  determine,  in  the  first 
instance,  whether  the  competency  of  Crecilius  to  testify  as  to  trans- 
actions between  himself  and  the  decedent  is  to  be  tested  by  Federal  or 
State  law.  The  rule  is  that,  where  Congress  has  legislated  on  the  sub- 
ject,— that  is,  has  enacted  a  law  covering  the  particular  case, — such 
law  must  prevail  in  the  Federal  Courts,  notwithstanding  it  differs  from 
the  State  law.  The  State  laws  control  in  determining  the  competency 
of  witnesses  only  in  cases  like  that  of  Packet  Co.  v.  Clough  (20  Wall. 
537),  which  do  not  fall  within  any  provision  of  the  Federal  laws. 

"The  case  at  bar  is  clearly  within  the  terms  of  section  858.  The  effort 
is  to  exclude  Crecilius  as  a  witness  on  the  ground  of  interest ;  but  the 
first  clause  of  the  section  declares  that  interest  shall  be  no  disqualifica- 
tion 'in  any  civil  action,'  and  the  only  exception  to  that  rule  is  that 
mentioned  in  the  proviso, — that  a  person  called  as  witness  shall  not  be 
allowed  to  testify  as  to  any  transactions  with  or  statement  by  a  de- 
cedent, if  the  suit  is  against  his  executor  or  administrator,  and  the  wit- 
ness is  himself  an  opposing  party  to  the  suit,  unless  the  witness  is 
called  upon  to  testify  by  the  executor  or  administrator.  Whatever  view, 
therefore,  the  Court  might  entertain  as  to  the  competency  of  the  wit- 
ness under  the  State  law,  it  is  compelled  to  hold  that  he  is  made  a 
competent  witness  by  the  Federal  statutes.  Judgment  will  accordingly 
go  against  the  executrix  for  the  amount  of  the  comptroller's  assess- 
ment ;  that  is,  for  $3,500,  with  interest  at  6  per  cent  per  annum,  to  be 
computed  from  September  24,  1889,  to  this  date."^ 

1 — Haymond,    J.,    in    Owens    v.    Owens,  easy  prey   for  the  dishonest  and  unscrupu- 

44   W.   Va.    88,    95    (1878):      "The   law  in  lous." 

the    exception    to    the    privilege    to    testify  Corliss.    J.,    in    St.    John    v.    Lofland,    5 

was    intended    to    prevent    an    undue    ad-  N.   D.   140,  64  N.  W.  930   (1895):      "Stat- 

vantage  on  the  part  of  the  living  over  the  utes     which     exclude     testimony     on     this 

dead,    who    cannot    confront    the    survivor,  ground       are       of       doubtful       expediency, 

or  give  his  version  of  the  affair,  or  expose  There  are   more  honest  claims   defeated  by 

the    omission,    mistakes,    or    perhaps    false-  them   by   destroying  the  evidence  to  prove 

hoods    of    such    survivor.      The    temptation  such   claims    than    there   would   be   fictitious 

to  falsehood  and  concealment  in  such  cases  claims    established    if    all    such    enactments 

is    considered    too    great    to    allow    the    sur-  were  swept  away  and  all   persons  rendered 

viving   party  to   testify  in   his   own  behalf.  competent   witnesses.      To    assume    that    in 

Any    other    view    of    this    subject,    I    think,  that    event    many     false    claims     would    be 

would    place    in    great    peril    the    estates    of  established   by    perjury    is    to   place    an    ex- 

the  dead,  and  would  in  fact  make  them  an  treraely    low    estimate    on    human    nature, 


No.  73.  INTEREST.  89 

PEOPLE  V.  TYLER  (1869). 
36  Col.  528. 

The  Court  was  asked  to  construe  the  following  statute  of  1865-6, 
p.  865: 

"Section  i.     In  the  trial  of  all  indictments,  complaints,  and  other 
•  proceedings    against    persons    charged    with    the    commission    of 

crimes  or  offenses,  the  person  so  charged  shall,  at  his  own  request,  but 
not  otherwise,  be  deemed  a  competent  witness,  the  credit  to  be  given  to 
his  testimony  being  left  solely  to  the  jury,  under  the  instructions  of  the 
Court. 

"Sec.  2.  Nothing  herein  contained  shall  be  construed  as  compelling 
any  such  person  to  testify." 

Sawyer,  C.  J . :  "The  policy  of  such  a  statute  has  been  considerably 
discussed  by  law  writers  and  others,  and,  to  our  minds,  the  strongest 
objection  that  has  been  urged  against  it,  is,  that  it  places  a  party 
charged  with  crime  in  an  embarrassing  position ;  that,  even  when  in- 
nocent, a  party  upon  trial  upon  a  charge  for  some  grave  offence  may 
not  be  in  a  fit  state  of  mind  to  testify  advantageously  to  the  truth  even, 
and  yet  if  he  should  decline  to  go  upon  the  stand  as  a  witness,  the  jury 
would,  from  this  fact,  inevitably  draw  an  inference  unfavorable  to  him, 
and  thus  he  would  be  compelled,  against  the  humane  spirit  of  the  com- 
mon law,  to  furnish  evidence  against  himself,  negatively  at  least,  by 
his  silence,  or  take  the  risk,  under  the  excitement  incident  to  his  posi- 
tion, of  doing  worse,  by  going  upon  the  stand  and  giving  positive  tes- 
timony." 


COLLINS  V.  PEOPLE   (1881). 

p5  ///.  584,  587. 

ScHOLFiELD,  J. :     "Herman  Young,  Alexander  Lacomb,  and  plaintiff 
in  error,  were  jointly  indicted,  by  the  grand  jury  of  Cook  county,  for 
burglariously  entering  the  store  of  Cohn,  Wampold  &  Co.,  in  the 
'  city  of  Chicago,  on  the  night  of  the  nth  of  May,  1879,  and  steal- 

ing therefrom  certain  goods.  Young  and  plaintiff  in  error  were  placed 
upon  their  trial,  and,  by  the  verdict  of  a  jury,  they  were  found  guilty, 
and  the  punishment  of  each  was  fixed  at  ten  years'  confinement  in  the 

and  a  very  high  estimate  on  human  inge-  impossible,  to  parry  if  his  testimony  is 
nuity  and  adroitness.  He  who  possesses  no  a  tissue  of  falsehoods, — the  sword  of  cross- 
evidence  to  prove  his  case  save  that  which  examination.  For  these  reasons,  which  lie 
such  a  statute  declares  incompetent  is  on  the  very  surface  of  this  question  of 
remediless.  But  those  against  whom  a  policy,  we  regard  it  as  a  sound  rule  to  be 
dishonest  demand  is  made  arc  not  left  ut-  applied  in  the  construction  of  statutes  of 
terly  unprotected  because  death  has  sealed  the  character  of  the  one  whose  in;erpre- 
the  lips  of  the  only  person  who  can  con-  tation  is  here  involved,  that  they  should 
tradict  the  survivor,  who  supports  his  not  be  extended  beyond  their  letter  when 
claim  with  his  oath.  In  the  legal  armory,  the  effect  of  such  extension  will  be  to 
there  is  a  weapon  whose  repeated  thrusts  add  to  the  list  of  those  whom  the  act 
he  will  find  is  difficult,  and  in  many  cases  renders    incomoetent   as   witnesses." 


90  TESTIMONIAL  QUALIFICATIONS.  No.  73. 

penitentiary.  The  Court  awarded  plaintiff  in  error  a  new  trial,  but  as 
to  Young  judgment  was  entered  upon  this  verdict.  Subsequently, 
plaintiff  in  error  was  placed  upon  trial  under  the  indictment,  alone, 
and  he  was  again  found  guilty,  by  the  verdict  of  the  jury,  and  his  pun- 
ishment, this  time,  was  fixed  at  twelve  years'  confinement  in  the  peni- 
tentiary. The  Court  overruled  motions  for  a  new  trial  and  in  arrest  of 
judgment,  and  entered  judgment  upon  this  verdict.  This  writ  brings 
before  us,  for  review,  the  record  of  that  judgment.  The  only  evidence 
directly  and  positively  connecting  plaintiff  in  error  with  the  burglary, 
is  that  furnished  by  the  testimony  of  Lacomb,  his  co-defendant.  No 
nolle  prosequi  has  been  entered  as  to  Lacomb,  and  he  has  never  been 
tried  under  the  indictment.  He  has  pleaded  not  guilty,  and  the  issue 
thus  presented  is  still  pending.  It  is  therefore  insisted  that  he  was  in- 
competent as  a  witness.  We  do  not  deem  it  necessary  to  inquire  what 
was  the  common  law  in  this  respect,  since  we  are  of  opinion  that 
the  question  is  conclusively  settled  against  plaintiff  in  error  by  our 
statute.  It  provides:  'No  person  shall  be  disqualified  as  a  witness  in 
any  criminal  case  or  proceeding  by  reason  of  his  interest  in  the  event 
of  the  same,  as  a  party  or  otherwise,  or  by  reason  of  his  having  been 
convicted  of  any  crime ;  but  such  interest  or  conviction  may  be  shown 
for  the  purpose  of  affecting  his  credibility ;  provided,  however,  that  a 
defendant  in  any  criminal  case  or  proceeding  shall  only  at  his  own  re- 
quest be  deemed  a  competent  witness.'  ...  If  at  common  law  Lacomb 
would  have  been  an  incompetent  witness,  it  must  have  been  because  he 
was  interested  in  the  event  of  the  suit,  and  under  the  above  language  it 
is  wholly  unimportant  whether  that  interest  arose  from  his  being  a 
party  or  otherwise,  for  in  either  event  he  is  rendered  competent.  The 
proviso  adds  force  to  this  view;  it  shows  that  it  was  intended  that  all 
defendants  should  be  allowed  to  testify,  for  otherwise  the  proviso  was 
wholly  unnecessary.  Under  that  section  a  defendant  is  unquestionably 
entitled  to  have  the  benefit,  for  what  it  is  worth,  of  the  evidence  of  a 
co-defendant ;  and  the  same  right  is  equally  clearly  given  to  the  State. 
The  infamy  arising  from  convicted  guilt,  and  the  interest  resulting 
from  being  a  party  to  the  same  case  or  proceeding,  may  now  be  consid- 
ered for  the  purpose  of  determining  what  credence  should  be  given  to 
the  testimony  of  the  witness,  but  they  no  longer  furnish  any  ground 
for  excluding  his  testimony."^ 


Chief   Baron   Gilbert,   Evidence,   133    (ante   1727) :     "The   second 

corollary    to    this    general    rule    [of    exclusion    from    interest]    is    that 

husband   and   wife   cannot  be   admitted  to   be   witnesses   for  or 
74- 

against  each  other;    for  if  they  swear  for  the  benefit  of  each 

other,  they  are  not  to  be  believed,  because  their  interests  are  absolutely 

the  same,  and  therefore  they  can  gain  no  more  credit  when  they  attest 

for  each  other  than  when  any  man  attests  for  himself." 

I — Compare   the  authorities  cited  in  W.,  §  580. 


1 


No.  76.  HUSBAND  AND  WIFE,  91 

WILLIAM  &  MARY  COLLEGE  v.  POWELL  (1855). 

12  Graft.  3/2,  383. 

Lee,  J.:  "Thomas  J.  Powell  is  offered  as  a  witness  [for  his  wife's 
estate]  in  support  of  the  settlement  made  by  him  upon  his  wife, 
[which  is  now  sought  to  be  set  aside  as  void  against  creditors,  the 
*^  husband  being  insolvent].  For  this  purpose  he  was  clearly  incom- 
petent. .  .  .  That  he  was  not  himself  personally  interested  because  he 
was  bound  for  the  college  debt  in  any  case,  or  that  his  interest  was 
the  same  either  way,  does  not  vary  the  case.  The  authorities  cited 
show  that  his  incompetency  does  not  rest  upon  the  narrow  ground  of 
a  personal  and  direct  interest,  but  upon  other  and  different  principles. 
Indeed,  the  incompetency  has  been  maintained  even  where  the  hus- 
band's interest  was  the  other  way.  Thus,  in  an  action  by  the  trustee 
for  a  wife  against  the  sheriff  for  taking  goods  which  were  her  sep- 
arate property,  under  an  execution  against  the  husband,  the  husband 
was  held  to  be  an  incompetent  witness  for  the  plaintiff  (the  wife  being 
regarded  as  the  real  plaintiff),  although  he  had  an  interest  on  the 
other  side,  in  having  his  debt  satisfied  by  the  levy  of  the  execution."^ 


'  English  Common  Law  Practice  Commissioners,  Second  Report, 
1853,  p.  11:  "The  highly  satisfactory  result  of  these  more  enlarged 
views  [represented  by  the  abolition  of  disqualification  by  interest 
in  general]  induces  us  to  consider  whether  an  exception  pre- 
served by  the  late  statute,  namely,  the  exclusion  of  husband  and  wife  as 
witnesses  for  or  against  each  other,  may  not  be  abolished.  .  .  .  The  in- 
competency of  husband  and  wife  to  be  witnesses  for  one  another  is  said 
to  rest  on  three  grounds:  ist.  Identity  of  interest;  2d,  the  consequent 
danger  of  perjury;  3d,  the  policy  of  the  law,  which,  as  it  is  said, 'deems 
it  necessary  to  guard  the  security  and  confidence  of  private  life,  even 
at  the  risk  of  an  occasional  failure  of  justice,'  and  which  rejects  such 
evidence,  because  its  admission  would  lead  to  domestic  disunion  and 
unhappiness.  The  first  two  grounds  are  manifestly  no  longer  tenable, 
since  the  parties  to  suits  have  been  themselves  made  competent  to  give 
evidence.  It  remains  to  be  considered  how  far  the  third  ground  should 
be  allowed  to  exclude  testimony  which  may  be  essential  to  justice. 
In  the  first  place,  it  seems  clear  that  no  disturbance  of  domestic  hap- 
piness need  be  apprehended  from  permitting  husband  and  wife  to 
call  one  another  as  witnesses.  The  evidence  may  in  many  cases  be 
indispensable.  A  wife  often  keeps  her  husband's  books,  conducts 
his  business  in  his  absence,  pays  or  receives  money  for  him.  Even 
in  matters  in  which  she  may  take  a  less  active  part,  her  testimony 
may  be  the  only  one  to  prove  facts  es.^^ential  to  the  vindication  of  her 
husband's  rights,  or  it  may  be  valuable  as  confirmatory  of  the  evidence 

2 — Compare   the   authorities   cited   in    W.,  §§  600-620. 


92  TESTIMONIAL  QUALIFICATIONS.  No.  76. 

of  Other  witnesses:  so,  the  testimony  of  the  husband  may  be  material 
to  the  wife  in  matters  relating  to  her  separate  estate,  to  the  proof 
of  her  coverture,  if  sued  as  a  feme  sole,  and  the  like.  It  seems  diffi- 
cult to  assign  any  reason  why  the  law  should  be  more  tender  of  the 
domestic  happiness  of  married  persons  than  they  are  themselves  dis- 
posed to  be;  the  only  danger  that  can  be  suggested  is,  that  evidence 
might  be  extracted  from  the  witness,  by  the  adverse  party,  prejudicial 
to  the  interest  of  the  married  plaintiff  or  defendant,  and  that  some 
bitterness  of  feeling  might  arise  in  consequence ;  but  of  the  probability 
of  such  a  result  the  married  couple  are  themselves  the  best  judges. 
Should  any  fact  be  thus  brought  to  light  which  would  otherwise  have 
remained  unproved,  the  interests  of  truth  will  be  thereby  promoted, 
and  any  transient  interruption  of  conjugal  harmony  from  such  a  cir- 
cumstance or  from  disappointment  occasioned  by  the  evidence  falling 
short  of  what  was  expected,  would  be  a  trifling  evil  compared  to  the 
mischief  which  must  result  from  the  exclusion  of  testimony  essential 
to  the  ends  of  justice  and  truth. "^ 


Topic  IV  :     Testimonial  Knowledge. 

^"Observation,  Opportunity  to  Observe,  and  Knowledge.  It  is 
obviously  impossible  to  speak  with  accuracy  of  a  witness'  'knowl- 
edge' as  that  which  the  principles  of  testimony  require.  When  a 
^^  thing  is  known  to  be,  it  is;  and  that  would  be  the  end  of  inquiry, 
witness  cannot  be  assumed  -beforehand,  by  the  law,  to  know  things; 
the  most  it  can  assume  is  that  he  thinks  he  knows.  But  it  will  ask 
that  each  one  offered  shall  be  one  prima  facie  likely  to  know, — in 
short,  shall  have  had  an  opportunity  of  observing  what  was  or  what 
happened  and  shall  have  directed  his  attention  or  observation  to  the 
matter.  This  is  as  far  as  the  law  can  go.  Accordingly,  the  rules 
upon  the  subject  in  hand  are  all  concerned,  not  strictly  with  the  wit- 
ness' knowledge,  but  with  his  opportunities  of  observing  and  his  actual 
observation.  For  example,  if  it  is  a  question  of  the  aggressor  in  an 
affray,  what  the  tribunal  will  ask  for  is,  not  persons  who  know  who 
the  aggressor  was,  but  persons  who  have  been  so  situated  that  they 
had  an  opportunity  of  observing  and  did  observe  the  affair." 


BUSHNELL'S  TRIAL  (1656). 

5  How.  St.   Tr.  633,  641. 

Bushnell,  arguing:     "William  Pinchin  acknowledgeth  himself  to  be 
absent,  and  yet  he  swears  [to  my  unlawful  act  at  Box]  as  if  he  had 

3_Typical    statutes   affecting   the   subject  Compare   the   privileges,    post,    Nos.   464, 

will    be    found    in    the    Appendix    of    this         509. 
volume.  4 — Quoted  from  W.,  §  650. 


No.  81.  KNOWLEDGE.  93 

been  at  Box.  I  am  not  so  much  a  lawyer  as  to  know  how  far 
'"  forth  an  oath  will  extend,  or  to  what  it  will  amount,  if  a  man 
depose  nothing  but  what  he  hath  received  by  hearsay.  .  .  .  'He  is  a 
false  witness,  not  only  he  who  tells  a  lie,  but  also  he  who  testifies  a 
truth  whereof  he  hath  not  a  certain  and  undoubted  knowledge, — that 
is,  if  he  testify  that  which  he  hath  neither  seen  nor  heard  nor  hath 
had  any  experience  of.'  Which  I  speak  .  .  .  only  to  evidence  thus 
much  unto  thee,  that,  be  it  true  or  be  it  false,  yet  William  Pinchin 
could  be  no  competent  witness  of  it,  because  by  his  own  confession 
he  was  at  the  same  time  at  another  place  about  four  or  five  miles  off." 


BUSHEL'S  CASE  (1670). 

6  How.  St.  Tr.  ppp,  loo^. 

Vaughan^  C.  J.:     (noting  the  difference  between  a  juryman  and  a 
witness)  :     "A  witness   swears   but   to   what  he   hath  heard   or   seen, — 
generally   or   more    largely,    to    what    hath    fallen    under    his 
*"        senses." 


Thomas  Starkie,  Evidence,  yg,  i2j  (1824)  :  "To  render  the  com- 
munication of  facts  perfect,  the  witnesses  must  be  both  able  and  will- 
ing to  speak  or  to  write  the  truth.  It  is  necessary  that  they 
should  possess,  in  the  first  place,  the  means  and  opportunity  of  ac- 
quiring a  knowledge  of  the  facts.  ...  A  witness  who  states  facts 
ought  to  state  those  only  of  which  he  has  personal  knowledge;  and 
such  knowledge  is  supposed,  if  not  expressly  stated,  upon  the  examina- 
tion in  chief;  and  upon  cross-examination  his  means  of  knowledge  may 
be  fully  investigated,  and  if  he  has  not  sufficient  and  adequate  means 
of  knowledge,  his  evidence  will  be  struck  out." 


PARNELL  COMMISSION'S   PROCEEDINGS    (1898). 

36th  day.  Times'  Rep.  pt.  10,  p.  18. 

The  Irish  Land   League   and  its   leaders  being   charged  with   com- 
plicity in  certain   crimes,   particularly  in  the  Phoenix  Park   assassina- 
tion of  1882,  certain  of  the  known  criminals  testified  that  their 
SI 

body,    the    Invincibles,   had   received    assistance-money    from   the 

League;  it  had  turned  out,  on  cross-examining  one  of  them,  that 
his  testimony  to  the  receipt  of  this  money  from  the  League  officers, 
was  not  based  on  Jiis  own  knowledge  at  all,  but  merely  on  what 
he  had  heard  from  others ;  another  of  these  persons  was  now  asked 
on  direct  examination  as  follows:  Sir  H.  James:  "Tell  me  of  your 
own  knowledge  whether  you  know  of  his  receiving  any  money  from 
the  Land  League."  Sir  C.  Russell:  "My  Lords,  I  would  ask  my 
learned  friend  to  be  particular  as  to  that  question  'of  his  own  knowl- 
edge'   after   the   experience    we   had   of    Delaney's    evidence.     'Did   he 


94  TESTIMONIAL  QUALIFICATIONS.  No.  81. 

see  any  one  pay  him?'  is  the  proper  form  of  question."  Sir  H.  James: 
"I  think  not."  Sir  C.  Russell:  "With  great  deference,  my  Lords,  it  is. 
We  had  a  dehberate  statement  the  other  day  in  answer  to  a  similar 
question  put  to  a  witness,  'Did  you  know  this?'  and  'Did  you  know 
that?'  and  afterwards  in  cross-examination,  it  turned  out  that  he  did 
not  know  it  of  his  own  knowledge,  but  it  was  what  had  been  told  him. 
I  want  to  guard  against  a  repetition  of  that.  The  proper  form  of 
question  as  I  submit  is,  'Did  he  see  any  money  paid?'"  Sir  H. 
James  (to  the  witness)  :  "You  understand  what  I  mean — do  you 
know  this  of  your  own  knowledge?"  Sir  C.  Russell:  "I  am  objecting 
to  the  form  of  the  qviestion."  President  Hannen  :  "It  is  a  very  usual 
form  of  question."  Sir  C.  Russell:  "I  respectfully  say,  in  view  of 
the  reasons  I  have  given,  that  the  proper  question  is,  'Did  he  see  any 
money  paid?'"  President  Hannen:  "I  shall  not  interfere  with  the 
discretion  of  counsel  in  asking  a  question  in  a  manner  which  is  quite 
usual."  Sir  C.  Russell:  "I  have  pointed  out  the  danger — the  great 
danger — of  putting  the  question  in  the  form  in  which  my  learned 
friend  is  putting  it."  President  Hannen  :  "Precisely  so ;  and  you 
have  also  shown  where  the  safeguard  lies,  namely,  in  cross-examina- 
tion."2 


CARPENTER'S  ESTATE  (1892). 

P4  Cal.  414,  2Q  Pac.  iioi. 

A  will  was  contested  on  the  grounds  of  insanity  and  undue  influ- 
ence. Temple,  C.  :  "The  allegation  of  mental  incompetency  was  sup- 
ported, in  a  large  degree,  by  the  opinion  of  witnesses  claimed 
^"  to  be  intimate,  as  to  his  mental  condition.  Objection  was  made 
in  the  case  of  each  witness  on  the  ground  that  the  witness  was  not 
shown  to  be  an  intimate  acquaintance,  within  the  meaning  of  sub- 
division 10,  §  1870,  Code  Civil  Proc,  which  makes  competent  'the 
opinion  of  an  intimate  acquaintance  respecting  the  mental  sanity 
of  a  person,  the  reason  for  the  opinion  being  given.'  What  is  an 
'intimate  acquaintance'  has  not  been  very  clearly  settled.  The  re- 
quirement that  such  an  acquaintance  shall  be  an  intimate  acquaint- 
ance does  not  seem  to  exist  elsewhere.  The  witnesses  are  [at 
common  law]  only  required  to  have  had  sufficient  opportunity  to  ob- 
serve the  person  whose  sanity  is  in  question.  Different  rulings  have 
been  made  as  to  what  shall  be  considered  a  sufficient  showing  of  op- 
portunity of  observation  to  enable  a  witness  to  form  an  opinion  which 
can  be  received  as  evidence ;  or,  expressed  in  the  language  of  our  Code, 
what  degree  of  intimacy  there  must  be.  In  general,  the  idea  seems 
to  be  that  no  rule  can  be  prescribed  on  this  subject.  .  .  .  Now, 
when  we  take  into  consideration  the  rule  as  it  exists  in  most  juris- 

2— Compare   the   authorities   cited   :n  W.,  §§  657-659. 


No.  83.  KNOWLEDGE.  .  95 

dictions  where  the  common  law  prevails,  we  must  conclude  that  our 
Code  has  attempted  what  has  been  said  to  be  impracticable, — to  estab- 
lish a  rule  as  to  what  opportunities  of  observation  shall  entitle  a 
witness  to  speak.  .  .  .  Since  it  requires  the  drawing  of  a  definite  line 
between  things  which  are  separated  only  by  degrees  of  difference,  the 
rule  is  and  must  remain  more  or  less  indefinite.  A  very  large  dis- 
cretion must  be  conceded  to  the  trial  Court."* 


LORD  FERRERS  v.  SHIRLEY  (1731). 

Fitzgihbon,  ip^. 

"Amongst  other  witnesses  was  called  one  J.  J.,  who  would  have 
swore  to  the  handwriting  of  one  J.  Cottington,  whose  name  was 
to  the  deed  [of  Robert  Earl  Ferrers]  as  a  witness,  because 
"**  he  had  seen  several  letters  wrote  by  J.  Cottington.  There- 
upon he  was  asked,  whether  he  had  ever  seen  the  said  Cottington 
write ;  to  which  he  answered,  that  he  never  did,  nor  never  saw 
the  person  that  wrote  the  said  letters;  but  that  his  master,  to 
whom  the  said  letters  were  wrote  for  the  rent  of  a  part  of  the 
estate  of  the  late  Earl  Robert  Ferrers,  which  his  said  master 
held,  informed  him,  they  were  the  letters  of  J.  Cottington,  the  Lord 
Ferrers's  steward,  who  was  the  person  pretended  to  have  attested  the 
deed  in  question.  Hereupon  it  was  objected  to  his  testimony,  be- 
cause he  could  not  say  with  any  certainty,  whether  or  no  the  writer 
of  the  letters  was  the  same  person  that  attested  the  deed;  for  that  the 
J.  Cottington,  that  was  supposed  to  write  the  letters,  might  get  some 
other  person  to  write  those  very  letters  for  him ;  and  the  counsel  in- 
sisted, that  in  all  cases,  where  a  witness  would  swear  to  the  handwrit- 
ing, he  must  be  able  to  say,  that  he  saw  such  person  write.  The  Court 
rejected  the  said  J.  J.  because  he  could  not  ascertain  the  identity  of 
the  person.  But  my  Lord  Raymond  said,  that  it  is  not  necessary 
in  all  cases  that  the  witness  have  seen  the  person  write,  to  whose 
hand  he  swears ;  for  where  there  has  been  a  fixed  correspondence  by 
letters,  and  that  it  can  be  made  out  that  the  party  writing  such  letters 
is  the  same  man,  that  attested  a  deed,  that  will  entitle  a  witness  to 
swear  to  that  person's  hand,  tho'  he  never  saw  him  write.  Page, 
Justice,  said,  if  a  subscribing  witness  to  a  deed  lives  in  the  West- 
Indies,  whose  handwriting  is  to  be  proved  in  England,  a  witness  here 
may  swear  to  his  hand,  by  having  seen  the  letters  of  such  person 
wrote  by  him  to  his  correspondent  in  England,  because  under  the 
special  circumstances  of  that  case,  there  is  no  other  way,  or  at  least, 
the  difficulty  will  be  great,  to  prove  the  handwriting  of  such  subscrib- 
ing witness.  But  my  Lord  Raymond  differed,  and  said,  that  those 
special  circumstances  could  not  vary  the  reason  of  the  thing." 

3 — Compare  the  authorities   cited   in   W.,  §  68q. 


96  TESTIMONIAL  QUALIFICATIONS.  No.  84, 

EAGLETON  v.  KINGSTON   (1803.) 

8  Ves.  Jr.  473- 

Eldon,  L.  C.  :  "When  I  first  came  into  the  profession,  the  rule 
as  to  handwriting  in  Westminster  Hall  in  all  the  Courts  was  this :  You 
called  a  witness,  and  asked  whether  he  had  ever  seen  the  party 
^*  write.  If  he  said  he  had,  whether  more  or  less  frequently,  that 
was  enough  to  introduce  the  further  question,  whether  he  believed  the 
paper  to  be  his  handwriting.  ...  Or  you  might  ask  a  witness  who 
had  not  seen  him  write  for  a  length  of  time,  if  you  could  not  get  a 
witness  of  a  subsequent  date.  .  .  .  This  rule  was  laid  down  with  so 
much  clearness  that  till  very  lately  I  never  heard  of  evidence  in  West- 
minster Hall  of  comparison  of  handwriting  by  those  who  had  never 
seen  the  party  write."  The  same  judge,  in  Wade  v.  Broughton,  j 
Ves.  &  B.  172  (1814)  :  "Where  there  has  been  correspondence  by 
letters  the  contents  of  which  are  such  as  to  render  it  probable  that 
they  were  received  [by  the  genuine  person],  perhaps  impossible  to 
suppose  the  contrary,  that  course  of  correspondence  will  do;  and  that 
has  grown  up  in  modern  times." 


ROWT'S     ADMINISTRATRIX     v.     KILE'S     ADMINISTRATOR 

(1829). 

I  Leigh  225. 

CoALTER,  J. :    "The  reason  why  a  witness  must  see  another  write  in 
order  to  form  an  opinion  of  the  character  of  his  handwriting  is  not,  I 
apprehend,  because  seeing  the  party  write  gives  you  a  knowledge 
'  of  the  character  of  his  hand;  he  must  see  the  handwriting  itself, 

after  the  act  of  writing  is  performed,  in  order  to  acquire  that  knowl- 
edge. But  when  he  sees  the  manual  operation  himself,  he  knows 
that  the  handwriting  which  he  at  the  same  time  or  afterwards  inspects 
is  the  handwriting  of  the  party.  He  thus  acquires  a  knowledge  .  .  . 
of  a  handwriting  which  he  knows  to  be  that  of  a  certain  individual. 
.  .  .  Being  accustomed  to  see  the  operation  is  only  full  evidence  that 
the  writing  which  you  have  thus  seen  and  the  character  of  which 
is  more  or  less  distinctly  impressed  on  your  mind,  according  to  cir- 
cumstances, is  the  character  of  the  manual  writing  of  that  individual. 
[On  the  other  hand]  in  the  course  of  business  and  correspondence 
you  acquire  an  equally  perfect  knowledge  of  the  handzvrifing  of  the 
individual.  .  .  .  But  this  writing  may  have  been  performed  by  the 
clerk  of  the  person  in  whose  name  it  is ;  and  if  so,  you  have  no 
knowledge  of  the  handwriting  of  that  person,  though  you  have  of  that 
of  his  clerk.  .  .  .  [and  the  relevancy  of  such  knowledge]  would  be  en- 


No.  87.  KNOWLEDGE ;    RECOLLECTION.  97 

tirely  defeated  by  proof  that  the  letters  were  written  by  the  clerk, 
and  is  weakened  in  proportion  to  any  doubts  that  may  exist  whether 
the  party  whose  handwriting  is  to  be  proved  wrote  the  letters  or  not."* 


DE  BERENGER'S  TRIAL  (1814). 

Gurney's  Rep.,  188. 

In  this  celebrated  trial  for  swindling,  De  Berenger,  Lord  Cochrane, 
and  others  were  charged  with  having  falsely  circulated  a  report  of  the 
death  of  Napoleon  in  order  temporarily  to  raise  the  price  of  stocks 
^"  and  sell  on  the  risen  market.  It  was  proved  that  on  the  day  of  the 
rise  the  defendants  had  sold  more  than  £1,600,000  of  stocks,  recently 
bought ;  to  prove  the  prices  on  those  days,  a  witness  was  called  who  had 
been  "employed  by  the  House  to  take  the  prices  of  the  day  at  the  Stock 
Exchange."  Q.  "Where  do  you  get  those  accounts  from?"  A.  "I 
collect  them  from  the  Stock  Exchange."  Q.  "Do  you  go  about  all 
day  long  taking  the  prices?"  A.  "I  collect  them  at  different  times 
in  the  course  of  the  day."  Q.  "You  go  about  taking  an  account  from 
all  the  persons  who  are  there?"  A.  "I  take  them  from  different 
persons  who  are  in  the  market."  On  objection  by  Mr.  Serj.  Best, 
Ellenborough,  L.  C.  J.,  replied:  "It  is  all  hearsay;  but  it  is  the 
only  evidence  we  can  have ;  it  is  the  only  evidence  we  have  of  the 
price  of  sales  of  any  description.  I  do  not  receive  it  as  the  precise 
thing,  but  as  what  is  in  the  ordinary  transactions  of  mankind  received 
as  proper  information ;  and  I  suppose  there  is  hardly  a  gentleman 
living  who  would  not  act  on  this  paper."^ 


Topic  V:     Testimonial  Recollection. 

STATE  V.  FLANDERS  (1859). 

38  N.  H.  324,  332. 

Indictment  for  forgery  in  altering  a  bond  payable  to  one  Webber 
with  one  Andrews  and  one  Aiken  as  sureties ;  Webber  testified  positive- 
ly that  Aiken's  signature  was  upon  the  bond  before  the  altera- 
**•         tion  was  made.     Aiken  testified   that  he   read  the  bond  hastily 

4 — Doe    V.    Suckermore,    s    A.    &    E.    727  necessary.   .   .  .  Anything,  I  presume,  from 

(1836):     Williams,    J.:    "I    adverted    to    an  which    the   identity   of   the   writer   is  estab- 

expression   in    frequent  use,   and  which   in-  lished   may   suffice." 

deed   has   almost   grown    into   the   currency  Compare   the  authorities  cited   in   W.,   §§ 

of    a    proverb    upon    this    subject,    that    the  699-705. 

letter    or    letters    'must    have    been    acted  The  rule   for   expert   testimony  based  on 

upon.'       If,    however,    by    this    expression,  specimens  is  considered  under  the  Opinion 

it    be    meant    to    imply    that    any    business  rule,    post,    of    Nos.    427-436. 

must  be  transacted,  or,  in  any  sense  of  the  5 — Compare  the  authorities  cited  in  W., 

word,    act    done,    the    observation    is    with-  §§  712-719. 
out  foundation,   for  nothing  of  the  sort  is 


98  TESTIMONIAL  QUALIFICATIONS.  No.  87, 

when  he  signed  it,  and  could  not  say  whether  it  had  then  been  altered 
or  not,  although  he  had  an  impression  in  regard  to  it.  The  Court 
thereupon  permitted  the  counsel  for  the  government  to  ask  him,  against 
the  respondent's  objection,  what  his  impression  was,  and  he  testified 
that  his  impression  was  that  it  had  not  then  been  altered,  but  con- 
tained an  indemnity  against  the  Barron  attachment  only  as  originally 
written. 

Sawyer,  J. :  "An  impression  as  to  a  past  fact  may  mean  personal 
knowledge  of  the  fact  as  it  rests  in  the  memory,  though  the  remem- 
brance is  so  faint  that  it  cannot  be  characterized  as  an  undoubting 
recollection.  ...  In  this  sense  the  impression  of  a  witness  is  evidence, 
however  indistinct  and  unreliable  the  recollection  may  be.  No  line 
can  be  drawn  for  the  exclusion  of  any  record  left  upon  the  memory 
as  the  impress  of  personal  knowledge,  because  of  the  dimness  of  the 
inscription.  If,  therefore,  the  objection  is  to  be  considered  as  one 
taken  to  the  general  competency  of  such  testimony,  it  is  clear  that  it 
was  properly  overruled.  An  impression,  however,  may  mean  an  un- 
derstanding or  belief  of  the  fact,  derived  from  some  other  source  than 
personal  observation,  as  the  information  of  others;  or  it  may  mean 
an  inference  or  conclusion  of  the  mind  as  to  the  existence  of  the  fact, 
drawn  from  a  knowledge  of  other  facts.  When  used  in  these  senses, 
it  is  not  evidence."® 


ACKLEN'S  EXECUTOR  v.  HICKMAN   (1879). 

63  Ala.  4P4. 

Action  by  James  Hickman  for  the  amount  due  on  an  account  for 
services  rendered  to  Acklen  as  agent,  money  paid,  etc.  The  book- 
keeper. Hinds,  testified  for  the  plaintiff,  as  to  the  account  drawn 
°°  by  him,  that  the  first  indorsement  on  said  account  was  in  his 
handwriting;  that,  having  refreshed  his  memory  by  reading  said 
memorandum,  he  could  now  testify  from  memory  that  said  state- 
ment was  true,  and  that  the  same  was  correctly  dated  October  30, 
1867,  and  that  he  drew  off  said  account  from  the  books  of  the 
day  of  the  date  of  said  memorandum ;  that  on  or  about  the  30th 
of  October,  1867,  he  presented  said  account,  with  said  indorsement 
on  it,  to  said  Acklen,  at  his  residence  in  Huntsville;  and  that  said 
Acklen  admitted  that  he  owed  the  account,  and  that  said  account 
was  correct.  Thereupon,  plaintiff  offered  to  read  in  evidence  the 
said  memorandum,  or  indorsement,  dated  October  30,  1867.  To 
this  the  defendant  objected,  because  said  memorandum  was  not  legal 
evidence ;  admitting  that  the  witness  could  refer  to  said  memorandum 
to  refresh  his  memory,  but  insisting  that  the  same  could  not  be  prop- 
erly received  as  evidence,  because  it  was  an  ex  parte  statement  of  the 

6 — Compare  the  authorities  cited  in   W.,   §§  726-729. 


No.  88.  RECOLLECTION.  99 

witness.     The  court  overruled  the  objection,  and  admitted  the  memo- 
randum; to  which  the  defendant  excepted. 

The  witness  further  testified  that  several  years  afterwards,  some 
four  or  five  years,  the  plaintiff  came  to  Huntsville,  from  Nashville, 
and,  at  his  request,  witness  went  with  him  to  the  residence  of  said 
Acklen  in  Huntsville;  that  the  account  was  the  subject  of  conversation 
between  Hickman  and  said  Acklen;  that  Hickman  told  Acklen,  he 
must  have  some  money  to  go  home  on,  and  did  not  have  money  to 
pay  his  expenses;  that  Acklen  thereupon  handed  something  to  Hick- 
man, but  he  (witness)  can  not  say  whether  it  was  a  bank-bill,  or  the 
account  sued  on,  or  both ;  that  he  does  not  remember  what  it  was ; 
and  that  Acklen,  when  he  handed  this  something  to  plaintiff,  said, 
"I  will  pay  you  the  balance  soon."  The  witness  said,  that  he  could  not 
remember  the  day,  the  month,  or  the  year,  when  he  went  with  Hick- 
man to  see  Acklen;  and  that  the  second  indorsement  on  said  ac- 
count (the  credit  of  $20)  was  in  the  handwriting  of  said  Hickman. 
The  court  allowed  the  witness,  against  the  objection  of  the  defendant, 
to  testify  that  he  saw  Hickman  make  said  indorsement  on  said  ac- 
count, in  Huntsville,  on  the  same  day,  and  soon  after  he  and  Hickman 
left  Acklen's  house,  and  went  up  town  on  the  public  square;  to  which 
ruling  the  defendant  excepted.  The  court  also  allowed  the  witness, 
against  the  objection  of  the  defendant,  in  the  presence  of  the  court  and 
jury,  to  look  at  said  indorsement  in  the  handwriting  of  Hickman,  and 
refresh  his  memory  by  the  use  of  said  memorandum,  and  then  to 
testify,  against  the  objection  of  the  defendant,  that  the  said  visit  of 
witness  and  Hickman  to  said  Acklen  was  made  on  the  loth  Novem- 
ber, 1869.  The  defendant  objected  to  this  evidence  of  the  date  of 
said  visit,  and  his  reference  to  said  indorsement  to  refresh  his  memory; 
because  the  effect  was,  indirectly,  to  get  said  indorsement  before  the 
jury;  and  because  no  memorandum,  made  by  said  Hickman,  could 
be  properly  referred  to  by  said  witness ;  and  because  it  was  not  shown 
that  the  witness  knew  said  indorsement  was  true.  These  objections 
were    overruled,    and    the    defendant    excepted. 

Stone,  J. :  "The  law  recognizes  the  right  of  a  witness  to  consult 
memoranda  in  aid  of  his  recollection  under  two  conditions :  First, 
when  after  examining  a  memorandum  made  by  himself,  or  known  and 
recognized  by  him  as  stating  the  facts  truly,  his  memory  is  thereby 
so  refreshed  that  he  can  testify,  as  matter  of  independent  recollection, 
to  facts  pertinent  to  the  issue.  In  cases  of  this  class  the  witness  testi- 
fies to  what  he  asserts  are  facts  within  his  own  knowledge,  and  the 
only  distinguishing  difference  between  testimony  thus  given,  and  ordi- 
nary evidence  of  facts,  is  that  the  witness,  by  invoking  the  assistance 
of  the  memorandum,  admits  that  without  such  assistance  his  recollec- 
tion of  the  transaction  he  testifies  to  had  become  more  or  less  ob- 
scured. In  cases  falling  within  this  class,  the  memorandum  is  not 
thereby  made   evidence   in   the  cause,   and   its   contents   are   not   made 


100  TESTIMONIAL  QUALIFICATIONS.  No.  88. 

known  to  the  jury,  unless  opposing  counsel  call  out  the  same  on  cross- 
examination.  This  he  may  do,  for  the  purpose  of  testing  its  sufficiency 
to  revive  a  faded  or  fading  recollection,  if  for  no  other  reason. 

"In  the  second  class  are  embraced  cases  in  vv^hich  the  witness  after 
examining  the  memorandum  cannot  testify  to  an  existing  knowledge 
of  the  fact,  independent  of  the  memorandum, — in  other  words,  cases 
in  which  the  memorandum  fails  to  refresh  and  revive  the  recollection 
and  thus  constitute  it  present  knowledge.  .  .  ,  [If  the  witness]  testify 
that  at  or  about  the  time  the  memorandum  was  made  he  knew  its 
contents  and  knew  them  to  be  true,  this  legalizes  and  lets  in  both 
the  testimony  of  the  witness  and  the  memorandum.  The  two  are  the 
equivalent  of  a  present,  positive  statement  of  the  witness,  affirming 
the  truth  of  the  contents  of  the  memorandum. 

"Under  these  rules,  the  Circuit  Court  erred  in  allowing  the  mem- 
orandum to  be  given  in  evidence  to  the  jury.  The  court  erred,  also, 
in  allowing  the  witness  to  refresh  his  recollection,  by  the  credit  in- 
dorsed in  the  handwriting  of  Hickman.  True,  he  stated  he  saw  the 
indorsement  made;  but  he  did  not  testify  that  he  knew,  or  ever  had 
known,  it  contained  a  true  statement  of  the  facts.  If  he  had  testified 
that  he  saw  the  indorsement  made,  and  observed  its  contents,  and 
knew  at  the  time  that  they  were  true,  this  would  have  brought  the 
testimony  within  the  second  of  the  rules  stated  above  and  would  have 
let  in  both  the  testimony  and  the  memorandum,  notwithstanding  the 
witness,  at  the  time  of  the  trial,  had  no  independent  recollection  of 
the  facts  shown  by  the  indorsement."^ 


REX  V.  ST.  MARTIN'S   (1834). 

2  A.  &  E.  210. 

The  witness  looked  at  a  memorandum  of  a  lease;  "he  had  no 
memory  of  these  things  but  from  the  book,  without  which  he  should 
not  of  his  own  knowledge  be  able  to  speak  to  the  fact;  but 
^^  on  reading  the  entry  he  had  no  doubt  the  fact  really  hap- 
pened." Counsel,  opposing  this:  "Even  supposing  this  to  be  a 
mere  memorandum  such  as  the  witness  might  refresh  his  memory 
from,  still  his  evidence  does  not  go  far  enough.  He  says,  after 
looking    at    the    memorandum,    that    he    has    no    doubt,    but    that    he 

7 — Roivell,  J.,  in  Davis  v.  Field,   56  Vt.  he  is  enabled  to  swear  to  an  actua    recol- 

426    (1884):      "Nor    was   it    necessary    that  lection;   2.     Where  the  witness  after  refer- 

the   witness   should  have   had   an    independ-  ring    to    the    memorandum     undertakes     to 

ent   recollection.    .    .    .    The   old  notion   that  swear   to    the    fact,    yet  not   because    he    re- 

the    witness    must    be    able    to    swear    from  members   it,    but   because    of  his   confidence 

memory  is  pretty  much  exploded.     All  that  in  the  correctness  of  his  memorandum.     In 

is    required    is    that    he    be    able    to    swear  both   cases   the   oath    of  the  witness   is   the 

that    the    memorandum    is    correct.      There  primary,  substantive  evidence   relied  upon; 

seem    to    be    two    classes   of   cases    on    this  in  the   former  the  oath  being  grounded  on 

subject:       i.    Where   the   witness   by  refer-  actual    recollection,    and    in    the    latter    on 

ring   to   the  memorandum  has   his  memory  the    faith    reposed    in    the    verity    of    the 

quickened    and    refreshed    thereby,    so    that  memorandum. 


No.  91.  RECOLLECTION.  101 

has  no  memory  of  these  things;  so  that  his  memory,  after  being  re- 
freshed, does  not  supply  the  proof."  Taunton,  J. :  "When  a  bond  is 
put  into  the  hands  of  an  attesting  witness,  and  he  says  that  he  does 
not  recollect  attesting,  but  that,  from  seeing  his  name  there,  he  has 
no  doubt  that  he  did,  is  not  that  proof  of  his  attestation?"  Counsel, 
replying:  "A  naked  fact  may  be  so  proved;  but  here  the  question  was 
as  to  the  proof  of  the  contents  of  an  instrument,  or  of  particulars  ap- 
pearing from  those  contents  only."  But  the  Court  unanimously  over- 
ruled his  objection. 


DOE  V.  PERKINS  (1790). 
3  T.  R.  754- 
The  issue  being  the  time  of  expiration  of  certain  tenant-holdings, 
one  Aldridge  was  offered  to  prove  certain  declarations  of  the  tenants, 
as  minuted  by  him  in  a  book  at  the  time.  When  Aldridge  was 
examined  the  original  book  was  not  in  court;  but  he  spoke  con- 
cerning the  dates  of  the  several  tenancies  from  extracts  made  by  him- 
self out  of  that  book,  confessing  upon  cross-examination  that  he  had 
no  memory  of  his  own  of  those  specific  facts ;  but  that  the  evidence  he 
was  giving  as  to  those*  facts  was  founded  altogether  upon  the  extracts 
which  he  had  made  from  the  above  mentioned  book.  This  evidence 
was  objected  to  at  the  time  on  the  part  of  the  defendants,  upon  the 
ground  that,  as  the  witness  did  not  pretend  to  speak  to  those  facts 
from  his  own  recollection,  he  ought  not  be  permitted  to  give  evidence 
from  any  extracts,  but  that  the  original  book  from  whence  they  were 
taken  ought  to  be  produced.  Law  and  Lowndes,  arguing,  "insisted  on 
the  known  distinction  between  cases  ( i )  where  the  witness  swears  from 
his  own  [present]  knowledge  of  the  facts,  though  his  memory  may  be 
assisted  by  memoranda,  and  (2)  where  he  does  not  speak  from  any 
recollection  which  he  has,  but  merely  from  such  memoranda;  in  the 
latter  case  it  has  always  been  required  that  the  original  minutes  should 
be  produced,  because  of  the  great  door  which  might  otherwise  be 
opened  to  fraud  and  concealment;"  and  the  Court  approved  the  objec- 
tion. The  Court  were  clearly  of  opinion  that  Aldridge,  the  witness, 
ought  not  to  have  been  permitted  to  speak  to  facts  from  the  extracts 
which  he  made  use  of  at  the  trial. 


BURROUGH   v.   MARTIN    (1809). 

2  Camp.  112. 

Action  on  a  charter-party;   a  witness   was  called   to   give  an  ac- 
count of  the  voyage,   and  the  log-book  was  laid  before  him   for  the 
purpose   of    refreshing   his    memory.       Being   asked    whether   he 
had  written  it  himself,  he  said,  that  he  had   not.  but  that   from 
time  to  time  he  examined  the  entries  in  it  while  the  events  recorded 


102  TESTIMONIAL  QUALIFICATIONS.  No.  91. 

were  fresh  in  his  recollection,  and  that  he  always  found  the  entries 
accurate.  The  Attorney-General  contended,  that  the  witness  could 
make  no  use  of  the  log-book  during  his  examination,  notwithstanding 
his  former  inspection  of  it,  and  that  the  only  case  where  a  witness 
could  refer  to  a  written  paper  for  the  purpose  of  giving  evidence,  was 
where  he  had  actually  written  it  himself,  and  had  thus  the  surest 
means  of  knowing  the  truth  of  its  contents. 

Ellenborough,  L.  C.  J.:  "If  the  witness  looked  at  the  log-book 
from  time  to  time,  while  the  occurrences  mentioned  in  it  were  re- 
cent, and  fresh  in  his  recollection,  it  is  as  good  as  if  he  had  written 
the  whole  with  his  own  hand.  This  collation  gave  him  an  ample 
opportunity  to  ascertain  the  correctness  of  the  entries,  and  he  may 
therefore  refer  to  these,  on  the  same  principle  that  witnesses  are  al- 
lowed to  refresh  their  memory  by  reading  letters  and  other  documents 
which  they  themselves  have  written."® 


MAYOR,  ETC.,   OF  NEW  YORK  v.   SECOND  AVENUE  RAIL- 
ROAD CO.   (1886). 

102  N.  Y.  57^. 

Action  to  recover  damages  for  breach  of  a  contract  to  keep  certain 
parts  of  the  street  in«  repair.  Notice  had  been  served  upon  the  de- 
fendant that  if  it  did  not  repair  within  thirty  days  the  depart- 
^^  ment  of  public  works  would  make  the  necessary  repairs,  and 
defendant  would  be  held  responsible  for  the  expense.  The  defendant 
having  failed  to  comply  with  the  notice,  the  work  was  done  by  the 
•department,  and  the  expense  thereof  plaintiff  claimed  to  recover  herein. 

Andrews,  J.:  "A  more  serious  question  is  raised  by  exceptions 
to  the  admission  in  evidence  of  a  time-book  kept  by  one  John  B.  Wilt, 
and  of  a  written  memorandum  or  account  made  by  him,  offered  to 
prove  the  number  of  days'  work  performed  and  the  quantity  of  mate- 
rial used.  Wilt  was  a  foreman,  in  the  employ  of  the  department  of 
public  works,  and  had  general  charge  of  the  repairs  in  question.  Under 
him  were  two  gang  foremen,  or  head  pavers,  Patrick  Madden  and 
Charles  Coughlan,  each  having  charge  of  a  separate  gang  of  about  ten 
men  employed  on  the  work.  Wilt  kept  a  time-book,  in  which  was 
entered  the  name  of  each  man  employed.  He  visited  the  work  twice  a 
day,  in  the  morning  and  afternoon,  remaining  from  a  few  minutes  to 
half  an  hour  each  time,  and  he  testified  that  while  there  he  checked  on 

8 — Hayes,  J.,  in  Lord   Talbot  v.   Cusack,  own    handwriting,    he    gives   credit    to    the 

17   Ir.    C.    L.    213    (1864):      "['To   refresh  truth    and    accuracy    of    his    habits,    and, 

the    memory    of    the    witness'],    that    is    a  though  his   memory  is  a  perfect  blank,   he 

very  inaccurate  expression;  because  in  nine  nevertheless    undertakes    to    swear    to    the 

cases    out    of    ten    the    witness'    memory    is  accuracy  of  his  notes." 

not   at   all   refreshed;    he  looks  at   it   again  For    the    foregoing    cases,    compare    the 

and  again,  and  he  recollects  nothing  of  the  authorities  cited  in  W.,  §§  734-754. 
transaction;    but,    seeing   that   it    is    in    his 


No.  92.  RECOLLECTION.  103 

the  time-book  the  time  of  each  man,  as  reported  to  him  by  the  gang 
foremen.  He  also  testified  that  he  marked  the  men's  names  as  he  saw 
them,  and  that  he  knew  their  faces.  The  gang  foremen  did  not  see  the 
entries  made  by  Wilt,  but  they  testified  that  they  correctly  reported  to 
him  each  day  the  names  of  the  men  who  worked,  and  if  any  did  not 
work  full  time,  they  reported  that  fact  also.  Upon  this  proof,  the  trial 
judge  admitted  the  time-book  in  evidence,  against  the  objection  of  the 
defendant.  The  trial  judge  also  admitted  in  evidence,  under  like 
objection,  a  written  memorandum  or  account,  in  the  handwriting  of 
Wilt,  of  materials  used.  Wilt  testified  that  the  entries  in  the  account 
were  made  from  daily  information  furnished  by  the  gang  foremen,  on 
the  occasions  of  his  visiting  the  work,  and  that  he  correctly  entered  the 
amounts  as  reported.  It  does  not  appear  that  he  had  any  personal 
knowledge  of  the  matters  to  which  the  entries  related.  The  gang  fore- 
men were  called  as  witnesses  in  support  of  the  account.  Neither  of 
them  saw  the  entries,  and  on  the  trial  neither  claimed  to  have  any  pres- 
ent recollection  of  the  specific  quantities  so  reported  by  them.  Mad- 
den testified  that  he  reported  the  correct  amounts  to  Wilt,  and  it  is 
inferable  from  his  evidence  that  when  the  reports  were  made,  he  had 
personal  knowledge  of  the  facts  reported.  Coughlan  also  testified  in 
general  terms  that  he  reported  the  items  correctly.  But  on  further 
examination  it  appeared  that  his  reports  to  Wilt  of  the  stone  delivered 
at  the  work,  were  made  upon  information  derived  by  him  from  the  car- 
men who  drew  the  stone,  and  who  counted  them,  and  who  reported  the 
count  to  Coughlan,  who  in  turn  reported  to  Wilt.  Coughlan  saw  the 
carmen  dump  the  stone,  but  he  did  not  verify  the  count,  but  appears 
to  have  assumed  its  correctness.  The  carmen  who  delivered  the  stone 
were  not  called  as  witnesses. 

"i.  The  exception  to  the  admission  of  the  time-book  presents  a  ques- 
tion of  considerable  practical  importance.  The  ultimate  fact  sought  to  be 
proved  on  this  branch  of  the  case,  was  the  number  of  days'  labor  per- 
formed in  making  the  repairs.  The  time-book  was  not  admissible  as  a 
memorandum  of  facts  known  to  Wilt  and  verified  by  him.  His  obser- 
vation of  the  men  at  work  was  casual,  and  it  cannot  be  inferred  that  he 
had  personal  knowledge  of  the  amount  of  labor  performed.  His  knowl- 
edge, from  personal  observation,  was  manifestly  incomplete,  and  the 
time-book  was  made  up,  mainly,  at  least,  from  the  reports  of  the  gang 
L.-emen.  The  time-book  was  clearly  not  admissible  upon  the  testimony 
either  of  the  gang  foremen,  or  of  Wilt,  separately  considered.  The 
gang  foremen  knew  the  facts  they  reported  to  Wilt  to  be  true,  but 
they  did  not  see  the  entries  made,  and  could  not  verify  their  correct- 
ness. Wilt  did  not  make  the  entries  upon  his  own  knowledge  of  the 
facts,  but  from  the  reports  of  the  gang  foremen.  Standing  upon  his 
testimony  alone,  the  entries  were  mere  hearsay.  But  combining  the 
testimony  of  Wilt  and  the  gang  foremen,  there  was,  first,  original  evi- 
dence that  laborers  were  employed,  and  that  their  time  was  correctly 


10-i  TESTIMONIAL  QUALIFICATIONS.  No.  92. 

reported  by  persons  who  had  personal  knowledge  of  the  facts,  and  that 
their  reports  were  made  in  the  ordinary  course  of  business,  and  in 
accordance  with  the  duty  of  the  persons  making  them,  and  in  point  of 
time  were  contemporaneous  with  the  transactions  to  which  the  reports 
related ;  and  second,  evidence  by  the  person  who  received  the  reports, 
that  he  correctly  entered  them  as  reported,  in  the  time-book,  in  the 
usual  course  of  his  business  and  duty.  .  .  .  We  are  of  opinion  that  the 
rule  as  to  the  admissibility  of  memoranda  may  properly  be  extended  so 
as  to  embrace  the  case  before  us.  The  case  is  of  an  account  kept  in 
the  ordinary  course  of  business,  of  laborers  employed  in  the  prosecu- 
tion of  work,  based  upon  daily  reports  of  foremen  who  had  charge  of 
the  men,  and  who,  in  accordance  with  their  duty,  reported  the  time  to 
another  subordinate  of  the  same  common  master,  but  of  a  higher  grade, 
who,  in  time,  also  in  accordance  with  his  duty,  entered  the  time  as  re- 
ported. We  think  entries  so  made,  with  the  evidence  of  the  foremen 
that  they  made  true  reports,  and  of  the  person  who  made  the  entries 
that  he  correctly  entered  them,  are  admissible.  It  is  substantially  by 
this  method  of  accounts,  that  business  transactions  in  numerous  cases 
are  authenticated,  and  business  could  not  be  carried  on  and  accounts 
kept  in  many  cases,  without  great  inconvenience,  unless  this  method  of 
keeping  and  proving  accounts  is  sanctioned.  In  a  business  where 
many  laborers  are  employed,  the  accounts  must,  in  most  cases,  of  ne- 
cessity, be  kept  by  a  person  not  personally  cognizant  of  the  facts,  and 
from  reports  made  by  others.  The  admission  of  such  an  account 
as  legal  evidence  is  often  necessary  to  prevent  a  failure  of  justice. 
We  are  of  opinion,  however,  that  it  is  a  proper  qualification  of 
the  rule  admitting  such  evidence,  that  the  account  must  have  been 
made  in  the  ordinary  course  of  business,  and  that  it  should  not  be  ex- 
tended so  as  to  admit  a  mere  private  memorandum,  not  made  in  pursu- 
ance of  any  duty  owing  by  the  person  making  it,  or  when  made  upon 
information  derived  from  another  who  made  the  communication  casu- 
ally and  voluntarily,  and  not  under  the  sanction  of  duty  or  other  obli- 
gation.     The   case  before  us   is   within  the   qualification   suggested. 

"2.  In  respect  to  the  admission  of  the  account  of  material,  we  think 
that  part  of  the  account  based  upon  the  reports  of  Madden  was  admissi- 
ble on  the  same  grounds  upon  which  we  have  justified  the  admission  of 
the  time-book.  Madden,  in  substance,  testified  that  he  knew  the  facts 
and  properly  reported  them,  and  Wilt  testified  that  he  entered  them  as 
reported.  The  part  of  the  account  of  materials,  the  items  of  which 
were  furnished  by  Coughlan,  was  not  strictly  admissible.  Coughlan 
does  not  appear  to  have  had  personal  knowledge  of  the  quantity  of 
stone  delivered  on  his  part  of  the  work,  but  took  the  count  of  the  car- 
man, and  his  reports  to  Wilt  were  based  upon  the  reports  of  the  car- 
man to  him.  The  carman  was  not  called,  and  the  evidence  of  Wilt 
and  Coughlan  was  mere  hearsay.  If  the  attention  of  the  court  had 
been  called  by  the  defendant  to  this  part  of  the  account,  and  objection 


No.  94.  RECOLLECTION.  105 

had  been  specifically  taken  to  the  items  entered  upon  the  reports  of 
Coughlan,  the  objection  would,  we  think,  have  been  valid.  But  the 
objection  was  a  general  objection  to  the  whole  account.  It  was  clearly 
admissible  as  to  the  items  reported  by  Madden,  and,  we  think,  the 
general  objection  and  exception  is  not  available  to  raise  the  question 
as  to  the  admissibility  of  the  items  entered  on  the  report  of  Coughlan, 
independently  of  the  others."^ 


Sir  G.  A.  LewiNj  Note  to  Lavves  v.  Reed,  2  Lew.  Cr.  C.  152 
(1835)  :  "Where  the  object  is  to  revive  in  the  mind  of  the  witness  the 
recollection  of  the  facts  of  which  he  once  had  knowledge,  it  is 
"*  difficult  to  understand  why  any  means  should  be  excepted  to 
whereby  that  object  may  be  attained.  Whether  in  any  particular  case 
the  witness'  memory  has  been  refreshed  by  the  document  referred  to, 
or  he  speaks  from  what  the  document  tells  him,  is  a  question  of  fact 
open  to  observation,  more  or  less  according  to  the  circumstances.  If 
in  truth  the  memory  has  been  refreshed,  and  he  is  enabled  in  conse- 
quence to  speak  to  facts  with  which  he  was  once  familiar,  but  which 
afterwards  escaped  him,  it  cannot  signify,  in  effect,  in  what  manner 
or  by  what  means  these  facts  were  recalled  to  his  recollection.  Com- 
mon experience  tells  every  man  that  a  very  slight  circumstance,  and 
one  not  in  point  to  the  existing  inquiry,  will  sometimes  revive  the 
history  of  a  transaction  made  up  of  many  circumstances.  ,  ,  .  Why, 
then,  if  a  man  may  refresh  his  memory  by  such  means  out  of  court, 
should  he  be  precluded  from  doing  so  when  he  is  under  examination  in 
court  ?" 


HENRY  V.   LEE    (1810). 
2  Chitty  124. 

At  the  time  of  the  trial,  a  material  witness  said  he  did  not  recollect 
a  fact;  but  having  looked  at  a  paper  which  he  himself  had  not  writ- 
ten, he  said  that  he  distinctly  recollected  the  circumstances, 
^*  though  he  had  before  said  that  he  did  not  know  whether  he 
should  recollect  the  circumstances  after  looking  at  the  paper ;  and 
Topping  contended,  that  this  was  neither  sufficient,  nor  the  best  evi- 
dence. 

Ellenborough,  L.  C.  J.:  "If  upon  looking  at  any  document  he  can 
so  far  refresh  his  memory  as  to  recollect  a  circumstance,  it  is  suf- 
ficient ;  and  it  makes  no  difference  that  the  memorandum  is  not  writ- 
ten by  himself,  for  it  is  not  the  memorandum  that  is  the  evidence,  but 
the  recollection  of  the  witness." 

1 — The  Hearsay  use  of  such  memoranda        sons    is    deceased    or    absent,    is    considered 
as   regular   entries,    where   one   of  the   per-        under  the   Hearsay  rule,  post.   No.   311. 


106  TESTIMONIAL   EVIDENCE.  No.  95. 

'•   ,  HUFF  V.  BENNETT   (1852). 

6  N.  Y.  337. 

Libel,  in  reporting  certain  judicial  proceedings  before  the  Recorder 
of  New  York.  On  the  trial,  before  Oakley,  J.,  after  proof  of  publi- 
cation, and  in  reply  to  testimony  on  the  part  of  the  defendant, 
^^  as  to  the  correctness  of  the  published  reports,  the  plaintiff 
called  the  recorder  as  a  witness,  and  having  placed  in  his  hands  a 
copy  of  the  alleged  libellous  report  of  the  proceedings  before  him, 
asked  the  following  question:  "Wherein,  as  you  now  remember,  is  that 
report  incorrect?"     The  defendant's  counsel  objected  to  the  question. 

Jewett,  J. :  "It  was  insisted,  that  the  rule  was,  that  a  witness 
could  only  testify  to  such  facts  as  were  within  his  knowledge  and 
that  his  recollection  of  the  facts  could  only  be  refreshed  by  examining 
memoranda,  either  made  by  himself,  or  in  his  presence.  Although 
the  rule  is,  that  a  witness,  in  general,  can  testify  only  to  such  facts 
as  are  within  his  own  knowledge  and  recollection,  yet  it  is  well  settled 
that  he  is  permitted  to  assist  his  memory  by  the  use  of  any  written 
instrument;  and  it  is  not  necessary  that  such  writing  should  have  been 
made  by  himself,  or  that  it  should  be  an  original  writing,  providing  after 
inspecting  it  he  can  speak  to  the  facts  from  his  own  recollection."^ 


REX  V.  RAMSDEN  (1827). 

2  C.  &  P.  603. 

Indictment  for  a  conspiracy  to  sue  out  a  fraudulent  commission  of 
bankruptcy  against  two  of  the  defendants.  The  petitioning  creditor,  who 
was  called  on  the  part  of  the  prosecution,  stated,  that  he  bought 
""  the  debt  upon  which  he  became  petitioning  creditor  six  months 
ago.  In  his  cross-examination,  F.  Pollock,  for  the  defendant  Ramsden, 
put  a  paper  into  his  hand,  which  he  acknowledged  to  be  of  his  hand- 
writing, and  then  asked  him  if  he  had  not  bought  the  debt  nine  months 
before ;  which  he  admitted  he  had.  Scarlett,  A.  G.,  for  the  prosecution, 
wished  to  look  at  the  paper.  F.  Pollock:  "I  submit  my  friend  has  no 
right  to  see  it,  unless  he  will  read  it  in  evidence."  Tenterden,  L.  C. 
J. :  "You  put  the  paper  into  the  witness'  hands  to  refresh  his  memory. 
It  is  very  usual  for  the  opposite  counsel  to  see  it  and  examine  upon  it, 
and  I  think  he  has  a  right  to  see  it."  Scarlett,  A.  G.,  having  looked 
at  the  paper,  asked  the  witness  if  he  would  swear  that  it  was  written 
at  the  time  it  bore  date.  F.  Pollock:  "1  submit  that  this  question 
cannot  be  asked  without  the  paper  being  read."  Lord  Tenterden, 
C.  J.:  "I  think  it  may.  You  put  the  paper  into  the  witness's  hand, 
and  I  think  the  other  side  may  ask  when  it  was  written,  without 
being  bound  to  read  it."^ 

2 — For  the   foregoing  cases  compare  the  authorities  in  W.,  §§  758-764, 


No.  98.  LEADING  QUESTIONS.  107 


Topic  VI :     Testimonial  Narration. 

"The  third  element  forming  an  essential  part  of  all  testimony  is 
the  process  of  laying  before  the  tribunal  the  witness'  results  of  his 
Observation  and  his  Recollection,  i.  e.,  the  process  of  Narration 
^'  or  Communication.  In  this  element,  as  in  the  other  two,  there 
are  many  opportunities  for  defects  fatal  to  testimonial  trustworthiness. 
Its  office  is  to  make  intelligible  to  the  tribunal  the  knowledge  and 
recollection  of  the  witness,  whatever  that  may  amount  to,  affirmative 
or  negative,  useful  or  trivial.  Its  prime  and  essential  virtue,  then, 
consists  in  accurately  reproducing  and  expressing  the  actual  and  sin- 
cere Recollection.  When  the  statement  is  found  plainly  or  probably 
lacking  in  either  of  these  respects,  namely,  in  its  correspondence  to 
recollected  knowledge  or  in  its  intelligibility,  then  it  should  be  re- 
jected. For  the  purpose  of  grouping  these  various  rules,  it  may  be 
remembered  that  the  simplest  form  of  testimonial  statement  (from 
which  others  may  be  conceived  of  as  deviations)  is  an  (i)  uninter- 
rupted narrative  (2)  expressed  in  words  (3)  uttered  orally  (4)  and 
intelligible  directly  by  the  tribunal.  The  inquiry  therefore  concerns 
the  rules  which  become  necessary  when  there  is  a  variance  in  one 
or  another  of  the  four  respects.  That  is  to  say,  testimony  may  be 
(i)  furnished  upon  systematic  interrogations,  and  not  as  a  spontane- 
ous utterance;  or  (2)  it  may  be  non-verbal,  i.  e.,  expressed  dramatic- 
ally, in  conduct  or  gestures;  or  (3)  it  may  be  furnished  in  writing,  not 
orally;  or,  finally,  (4)  it  may  require  interpretation,  before  it  becomes 
intelligible  to  the  tribunal.  Various  rules  will  arise  according  as  the 
variation  lies  in  one  or  another  of  these  four  features. "- 


Joseph  Chitty,  Practice  of  the  Law,  III,  8g2  (1835)  :  "The  as- 
signed reason  in  support  of  the  rule  [against  leading  questions]  is  that  a 
witness  usually  has  a  strong  feeling  in  favor  of  the  party  who  has 
subpoenaed  him,  and  is  disposed  to  swear  anything  that  he  thinks 
will  serve  that  party,  and  that  a  leading  question  in  effect  suggests  to  the 
witness  the  answer  that  he  is  desired  to  give  and  invites  misrepresentation. 
The  reason  imputes  to  the  counsel  an  unworthy  motive,  and  to  every 
witness  a  supposition  that  he  would  be  guilty  of  perjury;  but  perhaps 
the  better  and  more  comprehensive  reason  is  that  many  witnesses, 
either  from  complaisance  or  indolence,  are  too  much  disposed  to  assent 
to  the  proposition  of  the  counsel  and  answer  as  he  may  suggest,  in- 
stead of  reflecting  and  answering  after  an  exertion  of  their  own 
memory." 

2 — Quoted  from  \V.,  §  766. 


108  TESTIMONIAL    NARR.\TION.  No.  99. 

EllenborougHj  L.  C.  J.,  in  2j  Hansard  Pari.  Deb.  20/  (1813), 
answering  criticisms  on  the  procedure  of  a  Commission  inquiring  into 
the  charges  against  the  Princess  of  Wales:  "Folly,  my  lords, 
""  has  said  that  in  examining  the  witnesses  we  put  leading  ques- 
tions. The  accusation  is  ridiculous;  it  is  almost  too  absurd  to  deserve 
notice.  In  the  first  place,  admitting  the  fact,  can  it  be  objected  to  a 
judge  that  he  put  leading  questions?  Can  it  be  objected  to  persons  in 
the  situation  of  the  Commissioners  that  they  put  leading  questions? 
I  have  always  understood,  after  some  little  experience,  that  the  mean- 
ing of  a  leading  question  was  this,  and  this  only:  That  the  judge  re- 
strains an  advocate  who  produces  a  witness  on  one  particular  side  of  a 
question,  and  who  may  be  supposed  to  have  a  leaning  to  that  side  of  the 
question,  from  putting  such  interrogatories  as  may  operate  as  an  instruc- 
tion to  that  witness  how  he  is  to  reply  to  favor  the  party  for  whom 
he  is  adduced.  The  counsel  on  the  other  side,  however,  may  put 
what  questions  he  pleases,  and  frame  them  as  best  suits  his  purpose, 
because  then  the  rule  is  changed ;  for  there  is  no  danger  that  the  wit- 
ness will  be  too  complying.  But  even  in  a  case  where  evidence  is 
brought  forward  to  support  a  particular  fact,  if  the  witness  is  obvi- 
ously adverse  to  the  party  calling  him,  then  again  the  rule  does  not 
prevail,  and  the  most  leading  interrogatories  are  allowed.^  But  to  say 
that  the  judge  on  the  bench  may  not  put  what  questions  and  in  what 
form  he  pleases  can  only  originate  in  that  dullness  and  stupidity  which 
is  the  curse  of  the  age." 


Gaines^  J.,  in  Lott  v.  King,  yp  Tex.  2p2,  2pp,  15  S.  W.,  2^1 
(1891).  The  question  put  was,  "State  whether  or  not  you  ever  sold 
and  conveyed  the  headright  certificate  of  John  B.  Bulrese  for 
^""  one  league  and  one  labor  of  land  to  said  Barnes  Parker" :  "It 
does  not  properly  admit  of  an  answer  'yes'  or  'no.'  .  .  .  Whether  a 
question  in  that  or  a  similar  form  be  leading  or  not  depends  upon 
the  determination  of  the  inquiry  whether  it  suggests  any  particular 
answer ; '  and  we  think  questions  in  that  form  which  have  been  held 
leading  are  not  such  as  inquire  into  a  single  fact,  but  such  as  enable 
the  witness  to  state  in  two  words,  such  as  'he  did'  or  'he  did  not'  a 
series  or  group  of  facts.  ...  As  to  the  questions  now  under  consider- 
ation, we  think  it  would  puzzle  the  astutest  lawyer  who  is  unin- 
formed as  to  the  issues  in  the  case  to  determine  from  the  question 
alone  whether  the  examiner  desired  to  prove  that  the  witness  had  or 
had  not  transferred  the  certificate."^ 

3 — Wilson's    Trial,    2    Green    (Scotland),  ing   a  judge   in    England,   upon   that  being 

119    (1820).      Mr.    Murray:      "I    am    sure-  staled  to  him,  saying,   "Good  God,  what  a 

ly   entitled   to   lead   in  cross-examination?";  country!'" 

Lord   President:   "No;    I    never   heard   that  4 — On   the  foregoing  quotations,  compare 

with  us";  Mr.  Murray:  "1  remember  hear-  the  authorities  cited  in  \V.,  §§  768-773. 


KO.  102.  LEADING  QUESTIONS.  109 

Parnell  Commission's  Proceedings,  19th  day,  Times'  Rep.  pt.  5, 
p.  221  (1888).  The  Times  having  charged  the  Irish  Land  League 
with  complicity  in  crime  and  outrage,  a  constable  testifying  to 
^"■*-  outrages  was  cross-examined  by  the  opponents  as  to  his  partisan 
employment  by  the  Times  in  procuring  its  evidence.  Mr.  Lock-wood: 
"How  long  have  you  been  engaged  in  getting  up  the  case  for  the 
Times?"  Sir  H.  James:  "What  I  object  to  is  that  Mr.  Lockwood, 
w-'ithout  having  any  foundation  for  it,  should  ask  the  witness  'How 
long  have  you  been  engaged  in  getting  up  the  case  for  the  Times  ?'  " 
Mr.  Lockwood:  "I  will  not  argue  with  my  learned  friend  as  to  the 
exact  form  of  the  question,  but  I  submit  that  it  is  perfectly  proper 
and  regular.  If  the  man  has  not  been  engaged  in  getting  up  the  case 
for  the  Times  he  can  say  so."  Sir  H.  James:  "I  submit  that  my 
learned  friend  has  no  right  to  put  this  question  without  foundation. 
Counsel  has  no  right  to  say  'When  did  you  murder  A.  B.?'  unless 
there  is  some  foundation  for  the  question.  In  this  same  way  he  has 
no  right  to  ask  'How  long  have  you  been  engage  in  getting  up  this 
case?'  for  it  assumes  the  fact."  .  .  .  President  Hannen:  "I  do  not 
consider  that  Mr.  Lockwood  was  entitled  ta  put  the  question  in  that 
form  and  to  assume  that  the  witness  has  been  employed  by  the  Times." 


Lord  Keeper  Coventry,  in  Bishop  of  Lincoln's  Trial  (1637), 
5  How.  St.  Tr.  ydg,  802  (the  Bishop  being  charged  with  tampering 
with  witnesses)  :  "Now  it  may  be  said,  said  he  [the  defendant], 
lU-  'May  not  a  man  meddle  nor  question  with  a  witness  ?'  Yes ;  but 
with  certain  limitations,  for  else,  if  witnesses  be  made  and  corrupted, 
the  jurors  and  judges  both  of  them  may  be  abused;  and  if  that  wit- 
nesses may  be  led  and  instructed  by  questions,  or  the  like,  it  comes  to 
all  one  as  subornation.  A  solicitor  may  warn  witnesses  to  come  in, 
he  may  incite  them,  and  enforce  them,  and  one  as  well  as  the  other. 
.  .  .  But  a  solicitor  must  not  instruct  a  witness,  nor  threaten  him, 
nor  carry  letters  to  him,  to  induce  him  this  way  or  that.  Yet  he  may 
discourse  with  him,  and  ask  him  what  he  can  say  to  this  or  that 
point,  and  so  he  may  know  whether  he  be  fit  to  be  used  in  the  cause 
or  no ;  by  which  means  this  Court  is  freed  from  the  labor  of  asking 
many  idle  questions  of  the  witnesses  to  no  end,  if  they  can  say  noth- 
ing to  them  and  so  spend  good  time  to  no  end  nor  purpose.  Yet  he 
may  not  persuade  him  or  threaten  him  to  say  more  or  less  than  he 
of  himself  was  inclined  unto  and  was  by  his  conscience  beforehand 
bound  to  deliver  as  truth." 


ALLEN   V.    SEYFRIED    (1877). 

43  Wis.  414,  418. 

Action   for  the  price  of   lumber   sold.     Cole,  J. :     "The  motion   to 
suppress    the    depositions    was    founded    principally    on    the    objection 


110  TESTIMONIAL    NARRATION.  No.  103. 

that  it  appeared  that  the  witnesses  had  been  allowed  to  take 
and  read  the  direct  and  cross  interrogatories  before  they  were 
examined  by  the  commissioners.  The  witness  Becker  says,  in  answer 
to  cross  interrogatories:  'I  read  the  direct  and  cross  interrogatories, 
here,  to-day,  before  the  examination  began.'  The  witness  Glaser  says: 
'I  read  the  direct  and  cross  interrogatories,  here,  to-day,  and  several 
days  ago.'  Now,  it  is  said  that  this  shows  such  a  fraudulent  or  im- 
proper execution  of  the  commission  as  to  warrant  the  court  in  sup- 
pressing the  depositions.  The  practice  of  allowing  a  witness  to  read 
or  to  know,  previous  to  examination,  what  questions  will  be  asked  him, 
is  doubtless  liable  to  abuse,  and  may  sometimes  almost  destroy  the 
value  of  a  cross-examination.  A  hostile  or  dishonest  witness,  know- 
ing in  advance  what  questions  were  to  be  asked,  would  be  put  upon 
his  guard,  and  might  so  prepare  his  answers  as  to  suppress  the  truth, 
conceal  his  bias,  or  avoid  self-contradiction.  This  is  all  very  evident. 
But  still  it  is  absolutely  necessary,  in  certain  cases  where  a  witness 
is  to  be  examined  in  reference  to  a  transaction  which  was  the  sub- 
ject of  correspondence,  or  which  involved  numerous  items  or  dates, 
that  he  should  be  informed  beforehand  of  the  nature  and  scope  of  the 
questions  he  will  be  called  upon  to  answer,  in  order  that  he  may  be 
prepared  for  the  examination ;  for  it  is  obvious  that  without  some 
previous  preparation  to  refresh  his  memory  in  such  cases,  his  testi- 
m.ony  would  be  nearly  or  quite  valueless.  We  think,  therefore,  to  lay 
down  a  rule  that  it  is  sufficient  ground  for  suppressing  a  deposition, 
if  it  appear  that  the  witness  was  allowed  to  read  and  examine  the 
direct  and  cross  interrogatories  before  he  gave  his  evidence,  would  be 
inconvenient  and  dangerous  as  a  rule  of  practice." 


INGS'  TRIAL  (1820). 
23  How.  St.  Tr.  957,  999- 

Mr.  Adolphus,  cross-examining  an  alleged  accomplice:  "I  think  you 
told  us  some  things  then  [Monday,  at  another  trial  for  the  same  plot] 

that  did  not  come  to  your  recollection  today?"     A.    "That  may  be. 

I  will  not  pretend  to  say,  that  the  next  time  I  come  up  here  I  can 
communicate  everything  as  I  have  done  to-day."  Q.  "Certainly  not; 
there  are  people  that  proverbially  ought  to  have  a  good  memory?" 
A  "Yes,  certainly."  Q.  "You  make  your  evidence  a  little  longer 
or  shorter,  according  as  the  occasion  suits?"  A.  "Yes,  I  mention 
the  circumstances  as  they  come  to  my  recollection."  .  .  .  Mr.  Gurney: 
"That  is  observation,  and  not  question."  Mr.  Adolphus:  "I  am  ask- 
ing him  a  question."  ,  .  .  L.  C.  J.  Dallas  :  "You  should  not  now  ob- 
serve on  the  evidence."  Mr.  Adolphus:  "This  about  the  digging 
entrenchments  you  did  not  state  on  Monday?"  A.  "No,  I  forgot 
that."  Q.  "The  next  time  there  will  be  a  new.  story?"  Mr.  Gurney: 
"I  must  interpose,  my  lord."     L.  C.  J.   Dallas  :     "All  these  observa- 


No.  105.  MODES  OF  TESTIFYING.  Ill 

tions  are  certainly  incorrect."  Mr.  Adolphus:  "He  has  said  it  him- 
self; 'when  next  I  come  into  the  box,  I  shall  recollect  other  things,' 
and  upon  that  I  put  the  question,  whether  he  would  tell  another  story 
the  next  time  he  comes."  L.  C.  J.  Dallas:  "Ask  him  the  question 
if  you  wish  it."  Mr.  Adolphus:  "Shall  you  tell  us  a  new  story  the 
next  time?"  A.  "No.  If  anything  new  occurs  to  my  mind  when  I 
come  to  stand  here,  I  will  state  it."^ 


ARCHER  V.  RAILROAD  CO.   (1887). 

106  N.  Y.  589,  60s,  13  N.  E.  318. 

Action  for  personal  injuries  received  while  on  a  railroad  platform. 
Danforth,  J. :  "The  plaintiff  offered  in  evidence  a  photograph  rep- 
resenting, as  he  claimed,  the  locus  in  quo  of  the  accident. 
iUo  'Yht  appellant  alleges  error  in  its  admission.  Upon  the  trial  this 
occurred :  The  plaintiff,  being  on  the  witness  stand,  was  asked  to 
look  at  the  photograph  and  'see  if  that  describes  fairly  the  locality?' 
Before  answering  he  was  questioned  by  defendant's  counsel,  and  said: 
'This  was  not  made  by  me ;  I  don't  know  from  what  point  it  was 
taken;  I  don't  know  to  what  point,  as  a  focus,  this  instrument  was 
directed.  (Objected  to  by  defendant's  counsel;  objection  overruled, 
and  defendant's  counsel  excepted.)  A.  Yes,  sir.'  The  proposition 
now  submitted  by  the  appellant  to  show  error  is,  that  'there  was  not 
sufficient  proof  of  the  point  from,  or  the  time  at,  which  the  photograph 
was  taken  to  entitle  it  to  be  submitted  to  the  jury  as  a  picture  of  the 
premises  as  they  existed  at  the  time  of  the  accident.'  The  objection 
at  the  trial  was  a  general  one  and  within  our  decision  in  the  Cowley 
Case  (83  N.  Y.  464,  476),  unavailing.  If  a  fair  representation  of  the 
premises,  it  was  admissible  as  an  aid  in  the  investigation,  as  much 
so  as  a  map  or  other  diagram,  and  served  in  like  manner  to  explain 
or  illustrate  and  apply  testimony.  Such  drawings  are  uniformly  re- 
ceived and  are  useful,  if  not  indispensable,  to  enable  courts  and  juries 
to  comprehend  readily  the  question  in  dispute  as  affected  by  evidence. 
(People  V.  Buddensieck,  103  N.  Y.  487,  501.)  Of  course,  its  value, 
like  the  value  of  other  evidence,  depends  upon  its  accuracy. "** 

5 — On   the   foregoing  cases,  compare   the  the   deposition,   depends   upon   the  accuracy 

authorities  cited  in  W.,  §§  780-788.  with   which  his  words  uttered  are  put  into 

6 — Folger,    C.    J.,    in    Cowley    v.   People,  words    written.        Now    if    he    has    before 

83    N.    Y.    478    (1881):      "A    witness    who  him    a   portrait    or   photograph    of   the    per- 

speaks   to    personal   appearance    or    identity  son,    ana   it   shows    to   him   a  correct   copy 

tells    in    more    or    less    detail    the    minutia  of  that  person,  if  it  produce  to  his  view  a 

thereof  as  taken  in  by  his  eye.      What  he  correct   description,    which   he   testifies  is   a 

says  is  a   description   thereof  by  one  mode  likeness,  why  may  not  that  be  given  to  the 

of  signs,   by  words   orally   uttered.      If   his  jury  as  a  description  of  the  person  by  the 

testimony    be    written     instead    of    spoken  witness    in    another    mode    of   signs?" 

and    is    offered    as    a    deposition,    it    is    a  Coinpare    ihe    authorities    cited    in    W., 

description    in   another   mode    of    signs,    by  §§  789-797. 
words  written;  and  the  value  of  that  mode, 


112  TESTIMONIAL    NARRATION.  No.  106. 

ALLEN  V.  RAND   (1824). 

5  Conn.  322. 

To  prove  a  material  fact,  the  defendants  offered  in  evidence  the 
deposition  of  Mary  Trowbridge;  to  the  admission  of  which  the  plain- 
tiffs objected,  on  the  ground,  that  it  was  written  by  the  agent 
of  the  defendants,  or  of  one  of  them.  The  circumstances  were 
these:  On  Monday,  previous  to  the  taking  of  the  deposition,  the  par- 
ties met  at  the  house  where  Mrs.  Trowbridge  resided,  with  the 
magistrate  who  ultimately  took  the  deposition.  He  attempted  then 
to  take  it;  but  after  writing  a  few  lines,  Mrs.  Trowbridge  became 
faint  and  exhausted;  and  the  business  was  adjourned  to  the  next 
evening.  Afterwards,  in  the  absence  of  the  plaintiffs  and  their 
counsel,  and  of  the  magistrate.  Rand,  one  of  the  defendants,  requested 
Cornelia  Hall,  who  was  living  in  the  house  with  Mrs.  Trowbridge, 
to  write  her  deposition,  from  time  to  time,  as  she  was  able  to  give  it. 
With  this  request  Miss  Hall  complied;  and,  at  the  time  adjourned  to, 
the  plaintiff  not  having  attended,  the  paper  thus  written  by  her,  was 
presented  to  the  magistrate,  and  being  read  to  Mrs.  Trowbridge, 
was  signed  by  her,  and  sworn  to.  Hosmer,  Ch.  J. :  "The  only 
question  raised  in  this  case,  is,  whether  the  deposition  of  Mrs.  Trow- 
bridge was  legally  rejected.  .  .  .  Miss  Hall  was  an  agent  and  attor- 
ney, authorized  by  her  principal  to  do  this  specific  act;  for  what  is 
an  agent  but  a  substitute  or  deputy,  and  an  attorney  but  one  who 
is  put  in  the  place,  stead  or  turn  of  another?  3  Black.  Com.  25.  A 
general  agent  cannot  be  permitted  to  draw  up  a  deposition ;  a  fortiori, 
is  a  special  agent  objectionable,  who,  in  the  situation  of  Miss  Hall, 
must  be  influenced,  in  some  degree,  by  the  wishes,  feelings  and  in- 
terest of  her  employer.  .  .  .  The  law  will  not  trust  an  agent  to  draw 
up  a  deposition  for  his  principal,  as  by  the  insertion  of  a  word  the 
meaning  of  which  is  not  correctly  understood,  or  by  the  omission 
of  a  fact  that  ought  to  be  inserted,  the  testimony  thus  garbled  and 
discolored  will  be  false  and  deceptive.  Nor  is  there  a  possible  argu- 
ment in  favor  of  such  a  proceeding.  The  deponent  may  write  the 
deposition,  or  procure  it  to  be  written  by  a  disinterested  person,  or  it 
may  be  drawn  up  by  the  magistrate  who  takes  it,  or  the  parties 
may  agree  on  a  fit  person  for  this  purpose.  .  .  .  As  the  witness  ought 
to  be  disinterested,  so  must  the  evidence  be  impartial,  comprising  the 
whole  truth  and  nothing  but  the  truth;  and  this  can  never  rationally 
be  expected  when  a  deposition  is  drawn  up  by  an  attorney  or  agent, 
or,  what  is  little  less  exceptionable,  by  the  party  himself.  Sickness 
constitutes  no  reason  for  the  relaxation  of  this  rule,  as  it  produces  no 
actual  necessity;  and  if  it  did,  it  would  make  no  difference,  as  no  such 
exception  to  the  general  rule  is  admissible.  It  is  much  preferable 
that  in  particular  instances  the  party  should  even  be  deprived  of  tes- 
timony  than   that   a   principle    leading   to   widespread    mischief   should 


No.  108.  TESTIMONIAL  IMPEACHMENT.  113 

be  adopted;  as  private  disadvantage  is  a  less  evil  than  general  incon- 
venience."' 


SUB-TITLE  II: 

TESTIMONIAL  IMPEACHMENT. 

Modes  of  Impeachment. ^ — "First,  as  preliminary  to  the  whole 
subject  of  impeachment,  must  be  considered  what  persons  as  wit- 
nesses are  open  to  impeachment.  In  the  process  of  discrediting 
^^*  a  witness,  the  first  inference  must  always  be  from  some  de- 
fective testimonial  quality  to  the  assertion's  incorrectness.  The  dif- 
ferent possible  testimonial  qualities  are  thus  to  be  passed  in  review 
(Topic  I), — Moral  Character,  Mental  Capacity  (Insanity,  Intoxica- 
tion), Emotional  Capacity  (Bias,  Interest,  Corruption),  and  Experi- 
ential Capacity.  These  discrediting  deficiencies  become  in  their  turn 
the  object  of  circumstantial  proof, — first  (Topic  II),  such  sorts  of 
evidence  as  are  not  forbidden  to  be  offered  by  extrinsic  testimony, — 
circumstances  indicating  Interest,  Bias,  and  Corruption ;  following 
these  (Topic  III),  all  siKh  evidence  as  is  more  or  less  liable  to  the 
rule  excluding  extrinsic  testimony. — Particular  Instances  of  Conduct 
to  show  Character, — the  principles  here  involved  having  an  influence 
over  the  whole  group;  next,  similar  facts  to  show  Experiential  Defects 
and  the  like;  (Topic  IV)  Specific  Errors  of  assertion  used  indefinitely  to 
show  some  general  capacity  for  mistake  or  misstatement;  (Topic  V) 
Prior  Self-Contradictions  used  indefinitely  for  a  similar  purpose ;  and, 
finally,  (Topic  VI)  Admissions,  i.  e.,  prior  self-contradictions  of  par- 
ties." 


INTRODUCTORY:  PERSONS  IMPEACHABLE. 

FLETCHER  v.   STATE    (1874). 
4P  hid.  124,  1^0. 
Forgery.     Buskirk,  C.  J. :     "Upon  the  trial  of  the  cause  below,  the 
defendant  offered  no  evidence  of  his  general  character,  but  chose  to  rest 
upon  the  presumption  which  the  law  indulged  in  his  favor.     He 
1^^      went  upon  the  stand  as  a  witness,  and  testified  in  his  own  behalf. 
After  he  had  closed  his  evidence,  the  State  introduced  a  witness  who, 
in  answer  to  a  question  propounded  to  him,  testified  that  he  knew  the 
general  character  of  appellant,  and  that  it  was  bad.  .  .  .  The    law    in- 
vests every  person  accused  of  crime  with  a  presumption  in  favor  of  good 
character,  and  the  State  cannot  offer  evidence  to  impeach  such  charac- 
ter until  the  accused  has  put  his  general  character  in  issue  by  offering 

7— Compare   the   authorities  cited   in    W.,  i— Quoted  from  W.,  §  881. 

§So3. 


114  TESTIMONIAL   IMPEACHMENT.  No.  108. 

evidence  in  support  of  it.  .  .  .  These  were  familiar  principles,  well 
known  in  the  profession  prior  to  the  passage  of  the  act  of  March  loth, 
1873,  which  gave  to  a  defendant  in  a  criminal  cause  the  privilege  of 
testifying  in  his  own  behalf.  We  are  required,  for  the  first  time,  to 
determine  what  changes,  if  any,  have  been  produced  in  the  rules  of 
practice  by  the  passage  of  said  act.  Prior  to  such  enactment,  the  rights 
of  a  defendant  and  the  privileges  of  a  witness  were  separate  and  dis- 
tinct ;  but  since  its  passage,  a  defendant  who  elects  to  testify  occupies 
the  position  of  both  defendant  and  witness,  and  thus  he  combines  in  his 
person  the  rights  and  privileges  of  both.  But  while  this  is  true,  we  do 
not  think  it  should  result  in  any  change  in  the  law  or  rules  of  practice. 
In  his  capacity  as  a  witness  he  is  entitled  to  the  same  rights,  and  is 
subject  to  the  same  rules,  as  any  other  witness.  In  his  character  of  de- 
fendant, he  has  the  same  rights,  and  is  entitled  to  the  same  protection, 
as  were  possessed  and  enjoyed  by  defendants  before  the  passage  of  the 
act  in  question.  When  we  are  considering  the  rights  of  the  appellant 
in  his  character  of  defendant,  we  lose  sight  of  the  fact  that  he  has  the 
right  to  testify  as  a  witness ;  and  when  his  privileges  as  a  witness  are 
called  in  question,  they  should  be  decided  without  reference  to  the  fact 
that  he  is  a  defendant  also."^ 


BuLLER^  J.,  Trials  at  Nisi  Prius,  sg'j  (ante  1767)  :    "A  party  never 
shall  be  permitted  to  produce  general  evidence  to  discredit  his  own  wit- 
ness, for  that  would  be  to  enable  him  to  destroy  the  witness  if 
he  spoke  against  him,   and  to  make  him  a   good  witness  if  he 
spoke  for  him,  with  the  means  in  his  hands  of  destroying  the  credit  if 
he  spoke  against  him." 


WHITAKER  v.  SALISBURY  (1834). 

15  Pick.  345. 

Putnam,  J.:  "When  a  party  calls  a  witness  whose  general  charac- 
ter for  truth  is  bad,  he  is  attempting  to  obtain  his  cause  by  testimony 
not  v/orthy  of  credit;  it  is  to  some  extent  an  imposition  upon  the 
^^^  Court  and  jury.  The  law  will  not  suppose  that  a  party  will  do  any 
such  thingvbut  will  rather  hold  the  party  calling  the  witness  to  have  adopted 
and  considered  him  as  credible.  .  .  .  [But]  a  party  is  not  obliged  to  re- 
ceive as  un  impeached  truth  everything  which  a  witness  called  by  him 
may  swear  to.  If  his  witness  has  been  false  or  mistaken  in  his  testi- 
mony, he  may  prove  the  truth  by  others.  It  would  evidently  be  a  rule 
that  would  operate  with  great  injustice,  that  a  party  calling  a  witness 
should  be  bound  by  the  fact  which  was  sworn  to.  No  one  would  con- 
tend for  a  rule  so  inexpedient." 

2— Compare  the  authorities   cited  in  W.,  §§  889-892. 


No.  112.  PERSONS    IMPEACHABLE.  115 

Chief  Justice  May:  "Some  Rules  of  Evidence,"  ii  Amer.  Law  Rev. 
264  (1876)  :  "But  does  common  experience  show  that,  from  the  given  fact 
that  a  witness  is  brought  into  court  by  a  party,  it  is  to  be 
^■^■^  inferred  that  he  not  only  knows  his  character,  but  also  that 
that  character  is  such  that  in  'in  general'  he  is  worthy  of  belief? 
.  .  .  Witnesses  are  not  made  to  order, —  at  least,  not  by  honest 
people.  The  only  witnesses  who  can  properly  be  called  are  those 
who  happen  to  have  knowledge  of  relevant  facts;  and  who  these 
may  be  is  predetermined  by  the  history  and  course  of  the  events 
which  are  to  come  under  examination.  .  .  .  The  witnesses  to  the 
material  facts  in  dispute  are  such  persons  as  happen  to  have  been 
cognizant  of  the  facts,  and  are  not  such  as  the  parties  have  selected 
at  their  pleasure.  In  point  of  fact,  it  is  substantially  true  that  parties 
call  particular  persons  as  witnesses  simply  because  they  are  obliged  to 
and  can  call  no  others.  If  a  lawsuit  was  a  manufacture,  and  the  party 
bringing  it  could  select  his  materials — facts  and  witnesses — ,  there  might 
be  some  propriety  in  holding  him  responsible  for  the  character  of  these 
materials;  but,  as  both  are  beyond  his  control,  his  responsibility  for  their 
character  is  out  of  the  question.  .  .  .  [Moreover,]  Courts  are  not  estab- 
lished to  give  that  party  his  case  who  behaves  best  in  court.  If  they 
were,  it  seems  to  us  that  the  plaintiff  stands  quite  as  well  in  such  a  case, 
on  the  score  of  fairness,  as  the  defendant,  who  lies  in  wait  for  the  profits 
of  treachery.  ...  [It  is  improper  that]  an  untruthful  or  incredible  or 
unreliable  witness  by  reason  of  moral  infirmity  may  not  be  unmasked  by 
any  party  in  interest.  .  .  What  more  absurd  than  to  ask  a  jury  to  find 
the  truth  upon  the  testimony  of  a  witness  notorious  for  not  speaking  the 
truth,  all  the  while  concealing  from  them  the  fact  that  he  is  or  may  be 
a  false  witness  ?  And  how  can  it  be  of  importance  to  the  main  purpose 
of  the  trial  how  or  by  whom  the  fact  that  the  witness  is  not  to  be  relied 
upon  is  made  known?" 


WRIGHT   V.   BECKETT    (1834). 
/  Moo.  &  Rob.  414,  418. 
Action  of  trespass  quare  clans,  frcg.     The  question  between  the  par- 
ties was,  whether  the  plaintiff  had  the  exclusive  right  to  the  soil  of  a 
piece  of  marshy  land.     The  plaintiff's  counsel  having  examined 
four  witnesses  to  prove  that  the  plaintiff  and  his  predecessors  had 
immemorially  exercised  acts  of  ownership  over  it,  called  a  fifth  person, 
of  the  name  of  Warrener,  with  a  view  to  establish  the  same  fact.     War- 
rener,   however,   on  being   examined,  contradicted  the  other   four  wit- 
nesses; and  the  plaintiff's  counsel  thereupon  asked  him.  whether  he  had 
not  given  a  different  account  of  the  facts  to  the  plaintiff's  attorney  two 
days  before?     The  question  was  objected  to  by  Jones  Scrjt.,   for  the 
defendant,   on   the    ground   that   the   obvious    tendency  of   the   question 
put  by  the  plaintiff  was  to  discredit  his  own  witness.     Lord  Denman, 
C.  J.  however,  over-ruled  the  objection,  and  the  question  was  put.    The 


116  TESTIMONIAL   IMPEACHMENT.  No.  112. 

witness  gave  an  evasive  answer  to  the  question..  The  plaintiff's  coun- 
sel, thereupon,  called  the  plaintiff's  attorney,  and  proposed  to  ask  him 
whether  the  witness  Warrener  had  not  given  to  him,  upon  the  occa- 
sion referred  to,  an  account  of  the  facts  different  from  that  now  given 
by  him  in  court?  Jones,  Serjt.,  for  the  defendant,  again  objected:  but 
the  Lord  Chief  Justice  allowed  the  question  to  be  put.  The  plaintiff's 
attorney  answered  it  in  the  affirmative,  and  added,  that  he  took  down 
in  writing  the  account  so  before  given  by  Warrener,  and  that  it  was 
read  over  to  Warrener,  who  said  it  was  quite  correct,  and  the  plain- 
tiff's attorney  now  read  that  written  account  to  the  jury. 

The  Lord  Chief  Justice,  in  summing  up  the  case  to  the  jury,  told 
them,  that  they  were  not  to  look  upon  the  statement  given  by  War- 
rener to  the  attorney  before  the  trial,  and  read  at  the  trial  by  the 
attorney,  as  evidence  of  facts  therein  stated ;  they  were  only  to  re- 
ceive that  statement  by  Avay  of  neutralizing  the  effect  of  the  evidence 
which  Warrener  had  unexpectedly  given  in  court. 

The  jury  having  found  a  verdict  for  the  plaintiff,  Jones,  Serjt., 
'On  the  following  morning,  moved  for  and  obtained  a  rule,  to  shew 
cause  why  the  verdict  should  not  be  set  aside  and  a  new  trial  had, 
upon  the  ground  that  the  evidence  of  the  plaintiff's  attorney  had  been 
improperly  received.  In  the  course  of  Hilary  vacation,  1834,  the 
learned  Judges,  differing  in  opinion  on  the  case,  delivered  their  re- 
spective judgments  to  the   following  effect: 

Lord  Denman,  C.  J. :  "The  question  which  has  been  argued  before 
tis,  arose  in  this  manner: — Four  witnesses,  examined  on  the  plaintiff's 
part,  gave  evidence  which,  if  believed,  established  his  case;  he  then 
called  a  fifth,  whose  testimony,  if  believed,  defeated  the  plaintiff's  case, 
and  fully  proved  that  of  the  defendant.  It  was  then  proposed  by  the 
plaintiff*  to  shew  that  this  same  witness  had  formerly  given  a  com- 
pletely different  account  at  another  time.  The  mode  of  doing  this  was 
by  producing  the  statement  taken  down  shortly  before  the  trial,  from 
his  own  lips,  by  the  plaintiff's  attorney.  The  object  of  the  evidence 
tendered,  was  to  shew  the  imtruth  of  what  he  swore  upon  the  trial ; 
we  are  now  to  consider  whether  I  did  right  in  permitting  this  con- 
tradiction to  be  proved. 

"Notwithstanding  my  respect  for  the  different  opinion  which  is  en- 
tertained by  my  learned  brother  now  present,  and,  as  I  believe,  by 
others  of  great  weight  and  authority,  I  retain  that  on  which  I  acted 
at  Lancaster.  The  case  was  brought  by  what  occurred  to  this  simple 
point, — to  which  of  the  witnesses  credit  was  due.  If  to  the  first  four, 
the  plaintiff  was  entitled  to  the  verdict;  if  to  the  last,  the  defendant. 
On  this  issue  alone  the  event  of  the  cause  depended.  The  defendant 
enjoyed  the  privilege  of  assailing  the  credit  of  those  who  were  op- 
posed to  his  interest;  the  plaintiff*  must  have  the  same  right  with 
respect  to  that  witness  who  unexpectedly  turned  against  him,  unless 
he  is  debarred  by  some  strict  rule  of  law.     I  find  no  such  rule,  but 


No.  112.  PERSONS    IMPEACHABLE.  117 

many    decisions    which    have    proceeded    on    the    opposite    principle. 

"There  is  a  passage,  indeed,  upon  this  subject  in  Buller's  Nisi  Prius, 
to  which,  as  I  understand  it,  I  most  fully  describe  (on  p.  297)  : 
*A  party  never  shall  be  permitted  to  produce  general  evidence  to  dis- 
credit his  own  witness;  for  that  would  be  to  enable  him  to  destroy  the 
witness  if  he  spoke  against  him,  and  to  make  him  a  good  witness  if 
he  spoke  for  him,  with  the  means  in  his  hands  of  destroying  his  credit 
if  he  spoke  against  him.  But  if  a  witness  prove  facts  in  a  cause  which 
make  against  the  party  who  called  him,  yet  the  party  may  call  other 
witnesses  to  prove  that  those  facts  were  otherwise;  for  such  facts  are 
evidence  in  the  cause,  and  the  other  witnesses  are  not  called  directly 
to  discredit  the  first  witness,  but  the  impeachment  of  his  credit  is  in- 
cidental and  consequential  only.'  But  I  consider  the  meaning  to  be, 
that  no  party  shall  produce  a  witness  whom  he  knows  to  be  in- 
famous, and  whom  he  has,  therefore,  the  means  of  discrediting  by 
general  evidence.  No  inference  arises,  that  I  may  not  prove  my  wit- 
ness to  state  an  untruth,  when  he  surpries  me  by  doing  so,  in  direct 
opposition  to  what  he  had  told  me  before.  In  this  case  the  discredit 
is  consequential,  and  the  evidence  is  not  general  but  extremely  particu- 
lar, and  subject  to  any  explanation  which  the  witness  may  be  able  to 
afford.  The  rule  laid  down  in  Buller's  Nisi  Prius,  therefore  appears  to 
me  inapplicable. 

"Two  dangerous  consequences  are,  however,  apprehended  from  ad- 
mitting the  former  statement  of  a  witness,  in  contradiction  to  his  tes- 
timony on  the  trial.  The  most  obvious  and  striking  danger  is  that 
of  collusion.  An  attorney  may  induce  a  man  to  make  a  false  state- 
ment without  oath,  for  the  mere  purpose  of  contradicting  by  that  state- 
ment the  truth,  which,  when  sworn  as  a  witness,  he  must  reveal.  The 
two  parties  concerned  in  this  imagined  collusion  must  be  utterly  lost 
to  every  sense  of  shame  as  well  as  honesty.  But  there  is  another  mode 
by  which  their  wicked  conspiracy  could  be  just  as  easily  effected.  The 
statement  might  be  made,  and  then  the  witness  might  tender  himself 
to  the  opposite  party,  for  whom  he  might  be  first  set  up,  and  after- 
wards prostrated  by  his  former  statement.  This  far  more  effectual 
stratagem  could  be  prevented  by  no  rule  of  law. 

"The  other  danger  is,  that  the  statement,  which  is  admissible  only  to 
contradict  the  witness,  may  be  taken  as  substantive  proof  in  the  cause. 
But  this  danger  equally  arises  from  the  contradiction  of  an  adverse 
witness :  It  is  met  by  the  Judge  pointing  out  the  distinction  to  the 
jury,  and  warning  them  not  to  be  misled.  It  is  not  so  abstruse  but 
that  Judge  may  explain  it,  and  juries  perceive  its  reasonableness;  and 
it  is  probable  that  they  most  commonly  discard  entirely  the  evidence 
of  him  who  has  stated  falsehoods,  whether  sworn  or  unsworn.  .  .  . 

"They  say  that  the  reason  of  the  rule,  as  laid  down  in  Buller's  Nisi 
Prius.  extends  to  the  exclusion,  not  merely  of  general  evidence,  but 
of  all  evidence  which  is  offered  merely  for  the  purpose  of  discrediting 


118  TESTIMOXIAL   IMPEACHMENT.  No.  112. 

witness,  and  which  is  not  per  se  evidence  in  the  cause.  But  neither 
do  I  agree  that  this  larger  rule  would  have  followed  as  a  consequence 
of  the  reason  assigned.  For  the  word  'credit'  appears  to  me  manifestly 
to  be  employed  in  the  sense  of  general  character;  and,  thus  under- 
stood, the  rule  and  the  reason  go  well  together,  and  are  perfectly  con- 
sonant to  common  sense;  'You  shall  not  prove  that  man  to  be  in- 
famous whom  you  endeavored  to  pass  ofif  to  the  jury  as  respectable.' 
But  how  can  this  prevent  me  from  showing  that  he  states  an  untruth 
on  a  particular  subject  by  producing  the  contrary  statement  previously 
made  by  him,  which  gave  me  just  cause  to  expect  the  repetition  of 
it  now?  If  his  character  is  injured,  it  is  not  directly  but  conse- 
quentially. But  perhaps  no  injury  may  arise;  there  may  be  a  defect 
of  memory;  there  may  be  means  of  perfect  explanation.  If  not, — if 
the  witness  professing  to  be  mine  has  been  bribed  by  my  adversary  to 
deceive  me, — if,  having  taught  me  to  expect  the  truth  from  him,  he  is 
induced  by  malice  or  corruption  to  turn  round  upon  me  with  a  newly 
invented  falsehood,  which  defeats  my  just  right  and  throws  discredit 
on  all  my  other  witnesses,  must  I  be  prevented  (from)  showing  the 
jury  facts  like  these?  .  .  .  Can  any  reason,  then,  be  assigned  why, 
when  equally  deceived  by  his  denying  to-day  what  he  asserted  yester- 
day, you  should  be  excluded  from  showing  the  contradiction  into  which 
(from  whatever  motive)  he  had  fallen?  It  is  clear  that  in  civil 
cases  the  exclusion  might  produce  great  injustice,  and  in  criminal 
cases  improper  acquittals  and  fraudulent  convictions.  .  .  .  The  incon- 
venience of  precluding  the  proof  tendered  strikes  my  mind  as  infinitely 
greater  than  that  of  admitting  it.  For  it  is  impossible  to  conceive  a 
more  frightful  iniquity  than  the  triumph  of  falsehool  and  treachery 
in  a  witness  who  pledges  himself  to  depose  the  truth  when  brought 
into  Court,  and  in  the  meantime  is  persuaded  to  swear,  when  he  ap- 
pears, to  a  completely  inconsistent  story." 

BoLLAND,  B. :  "The  rule  applicable  to  this  question  is,  as  it  seems  to 
me,  that  which  has  been  relied  upon  by  my  brother,  Jones;  viz.,  that  a 
party  in  a  cause  is  not  to  be  permitted  to  give  evidence  of  a  fact,  for 
the  purpose  of  discrediting  his  own  witness,  unless  such  fact  would 
of  itself  be  evidence  in  the  cause;  but  that  where  such  fact  is  relevant 
to  the  issue,  and  so  per  se  evidence  in  the  cause,  such  proof  is  to  be 
allowed  to  be  given,  although  it  may  collaterally  have  the  effect  of  dis- 
crediting the  testimony  of  his  own  witness.  .  .  . 

"I  think  that  great  weight  is  due  to  the  argument  founded  on  the  dan- 
ger of  collusion;  it  is,  indeed,  in  my  mind,  the  main  object  to  the  recep- 
tion of  the  evidence.  With  the  exception  of  the  opinion  of  the  two  learned 
Judges  in  Rex  v.  Oldroyd,  the  authorities  are  uniform  in  establishing, 
that  a  party  cannot  contradict  his  own  witness  but  by  giving  evi- 
dence of  facts  bearing  upon  the  issue.  It  was  open  to  the  plaintifif 
to  do  so  in  the  present  case,  but  he  was  not  at  liberty  to  prove  that 
h'is   witness,  Warrener,   had  previously  made   a  different   statement  to 


No.  113.  PERSONS    IMPEACHABLE,  119 

the  attorney,  because  that  was  a  matter  not  relevant  to  the  issue  in  the 
cause;  nor  was  the  statement  entitled  to  such  weight  as  a  contradiction, 
as  to  have  the  power  of  neutralizing  the  evidence  (one  of  the  reasons 
urged  for  its  admission),  it  not  having  been  given  upon  oath.  It 
furnished  a  sufficient  apology  for  putting  Warrener  in  the  brief,  and 
calling  him,  but  could  go  no  farther.  For  these  reasons  I  am  of 
opinion,  the  evidence  of  the  witness,  Mallady,  was  improperly  received 
at  the  trial;  but,  as  the  Court  is  divided,  there  cannot,  of  course,  be 
any  rule." 


BULLARD    v.    PEARSALL    (1873.) 
53  N.  Y.  231. 

A  witness  was  called  by  the  plaintiff  to  prove  that  a  certain  con- 
versation took  place  between  the  witness  and  the  defendant  previous  to 
'  the  17th  of  July,  1868,  but  to  the  surprise  of  the  plaintiff  the  wit- 
•'■  ness    testified    that   the    conversation   took   place    on    the    twenty- 

fourth  of  July.  The  date  was  material.  The  plaintiff  was  permitted 
to  ask  the  witness  whether  he  had  not  upon  a  prior  examination  sworn 
that  the  occasion  upon  which  the  conversation  took  place  occurred  in 
June.  The  witness  answered  that  on  the  first  examination  referred  to 
he  supposed  that  the  occurrence  was  prior  to  the  seventeenth  of  July, 
but  on  subsequently  consulting  a  memorandum  he  had  found  himself 
mistaken  and  that  it  was  on  the  twenty-fourth  of  July.  He  further 
testified  on  his  second  examination  to  a  reply  made  by  the  defendant, 
during  the  conversation  in  question,  to  an  offer  then  made  by  the  witness, 
in  which  reply  the  defendant  mentioned  the  transaction  out  of  which 
this  action  arose,  which  occurred  on  the  seventeenth  of  July.  The 
plaintiff's  counsel  then  asked  the  witness  whether  he  had  not  pre- 
viously said  in  the  presence  of  the  plaintiff's  counsel  and  others  that 
he  did  not  know  that  the  defendant  made  much  reply  to  that  offer. 
This  question  was  objected  to,  and  the  objection  was  sustained. 

Rapallo,  J. :  "The  question  has  frequently  arisen  whether  the 
party  calling  the  witness  should,  upon  being  taken  by  surprise  by  unex- 
pected testimony,  be  permitted  to  interrogate  the  witness  in  respect  to 
his  own  previous  declarations,  inconsistent  with  his  evidence.  Upon 
this  point  there  is  considerable  conflict  in  the  authorities.  We  are  of 
opinion  that  such  questions  may  be  asked  of  the  witness  for  the  purpose 
of  probing  his  recollection,  recalling  to  his  mind  the  statements  he  has 
previously  made,  and  drawing  out  an  explanation  of  his  apparent  incon- 
sistency. This  course  of  examination  may  result  in  satisfying  the  wit- 
ness that  he  has  fallen  into  error  and  that  his  original  statements  were 
correct,  and  it  is  calculated  to  elicit  the  truth.  It  is  also  proper  for 
the  purpose  of  showing  the  circumstances  which  induced  the  party  to 
call  him.     Though  the  answers  of  the  witness  may  involve  him  in  con- 


120  TESTIMONIAL  IMPEACHMENT.  No.  113. 

tradictions  calculated  to  impair  his  credibility,  that  is  not  a  sufficient 
reason  for  excluding  the  inquiry.  .  .  .  Inquiries  calculated  to  elicit  the 
facts,  or  to  show  to  the  witness  that  he  is  mistaken,  and  to  induce  him 
to  correct  his  evidence,  should  not  be  excluded  simply  because  they  may 
result  unfavorably  to  his  credibility.  In  case  he  should  deny  having 
made  previous  statements  inconsistent  with  his  testimony,  we  do  not 
think  it  would  be  proper  to  allow  such  statements  to  be  proved  by  other 
witnesses ;  but  where  the  questions  as  to  such  statements  are  confined 
to  the  witness  himself,  we  think  they  are  admissible.  As  a  matter  of 
course,  such  previous  unsworn  statements  are  not  evidence.  .  .  .  [In 
the  present  case]  the  only  effect  which  could  have  been  claimed  from 
a  favorable  answer  would  have  been  to  discredit  the  witness  on  the 
ground  that  he  was  testifying  to  matters  of  which  he  had  previously 
disclaimed  any  knowledge,  and  that  his  latter  evidence  was  fabricated. 
The  plaintiff  was  allowed  to  ask  whether  at  the  time  inquired  of  he 
recollected  the  reply  to  which  he  testified  on  his  last  examination,  and 
this  was,  we  think,  as  far  as  the  plaintiff  was  entitled  to  go.  We  are, 
therefore,  of  opinion  that  no  error  was  committed  in  sustaining  the 
objection." 


Statutes.  England:  1854,  St.  17  &  18  Vict.  c.  125  §  22:  "[i]  A 
party  producing  a  witness  shall  not  be  allowed  to  impeach  his  credit  by 
general  evidence  of  bad  character;  [2]  but  he  may,  in  case  the 
witness  shall  in  the  opinion  of  the  judge  prove  adverse,  [3]  con- 
tradict him  by  other  evidence,  [4]  or  by  leave  of  the  judge  prove  that 
he  has  made  at  other  times  a  statement  inconsistent  with  his  present 
testimony.'' 

California:  C.  C.  P.  1872  §  2049:  "The  party  producing  a  witness 
.  .  .  may  also  show  that  he  has  made  at  other  times  statements  incon- 
sistent with  his  present  testimony." 


Topic  I :     Moral  Character. 

Lord  Chancellor  Macclesfield's  Trial,  16  How.  St.  Tr.  12^^ 
(1725)  ;  Common  Serjeant:    "We  desire  that  Mr.  Price  may  give  your 

Lordships  an  account  of  what  he  knows  of  the  character  of  Mr. 

Cothingham  and  how  long  he  hath  known  him."  Mr.  Price: 
"My  lords,  I  have  known  him  upwards  of  twenty  years;  I  never  knew 
anybody  say  anything  amiss  of  him.  ...  I  know  no  man  in  his  place 
behaved  himself  better  than  he  hath  done."  Common  Serjeant:  "We 
desire  to  ask  not  only  to  what  !Mr.  Price's  opinion  is,  but  to  what  is  the 
opinion  of  others,  as  to  his  general  character."    Mr.  Price:    "I  believe, 


No.  117.  MORAL   CHARACTER.  121 

if  you  ask  his  character  of  an  hundred  people,  ninety  of  them  will  give 
him  rather  a  greater  character." 


REX  V.  WATSON  (1817). 
S2  How.  St.  Tr.  I,  4P5,  2  Stark.  154.. 

Abbott,  J.:  "The  usual  question  put  for  the  purpose  of  discrediting 
the  testimony  of  a  witness  is,  Would  you  believe  that  witness  upon  his 
oath?"  Bayley,  J.:  "The  witnesses  may  state  that  he  is  not  a 
man  to  be  believed  upon  his  oath." 

James  Laii'son  sworn. — Examined  by  Mr.  Wetherell.  "Do  you  know 
a  person  of  the  name  of  John  Heyward,  alleged  to  abide  at  No.  6,  Stan- 
gate-wall,  Lambeth,  in  the  county  of  Surrey,  stock-broker?"  "I  know 
the  person  you  allude  to."  "How  many  years  have  you  known  him  ?" 
"Upwards  of  ten  years ;  in  fact,  I  have  known  him  from  a  boy." 
"Would  you  believe  him  upon  his  oath ;  or  in  your  judgment,  is  he  a 
person  to  be  believed  upon  his  oath?"  "I  believe  not;  I  would  not  be- 
lieve him  upon  his  oath."  "You  would  not ;  and  you  believe  he  is  not  a 
person  to  be  believed  upon  his  oath?"    "I  do." 


STATE  V.  RANDOLPH    (1856). 

24  Conn.  363,  367. 

Ellsworth,  J.:  "Another  subject  has  been  discussed,  respecting 
which  there  is  a  diversity  in  the  practice  of  the  courts  of  justice.  We 
mean,  the  proper  question  to  be  put  to  a  witness,  who  is  called 
to  impeach  the  character  of  another  witness.  One  thing,  how- 
ever, is  obvious,  that  in  all  courts,  whatever  be  the  form  or  extent  of 
the  enquiry,  the  thing  aimed  at  is  one  and  the  same,  the  character  of 
the  witness  for  truth;  and  where  the  question  assumes  a  more  general 
form,  it  is  allowed  only  for  its  supposed  bearing  on  the  truthfulness, 
or  the  reverse  of  the  witness ;  his  character  for  truth  is  all  that  is  per- 
tinent and  material  to  the  point,  and  all  that  the  jury  should  enquire 
after;  other  facts,  other  offences,  tried  or  untried,  not  being  crimen 
falsi,  have  no  bearing  upon  the  enquiry  whatever,  and  should  not  be 
brought  into  the  case.  In  the  English  courts,  the  enquiry  is  in  this 
form :  'Are  you  acquainted  with  the  character  of  the  witness  ? — what 
is  his  general  character? — would  you  believe  him  under  oath?'  .\s  a 
general  rule  of  practice  this  has  been  found  satisfactory  in  that  coun- 
try, and  elsewhere,  and  doubtless  would  be  so  here,  if  our  courts  had 
not,  at  an  early  period,  adopted  a  different  rule,  which  has  proved  to 
be  satisfactory  and  sufficient,  and  which  we  are  not  willing,  at  this  late 
day,  to  abandon  for  another,  certainly  not  better,  if  as  good.  .  .  .  The 
more  general  enquiry  in  England  is  adopted  to  learn  the  witness'  char- 


122  TESTIMONIAL   IMPEACHMENT.  No.  117. 

acter  for  truth;  ours  is  adopted  for  the  same  purpose,  but  is  more  sim- 
ple and  direct.  In  our  courts  the  enquiry  put  is,  'Is  the  character  for 
truth  on  a  par  with  that  of  mankind  in  general?'  The  English  rule  has 
this  advantage,  that  it  brings  the  general  character  of  the  witness  before 
the  triers,  which  is  important  where  the  witness  has  not  acquired  a 
specific  character  on  the  subject  of  truth;  and  hence  it  is  urged  with 
some  force  that  in  such  a  case  the  general  enquiry  is  essential,  for  no 
other  will  reach  the  case.  .  .  .  General  bad  character  is  undoubtedly 
a  serious  blemish  in  a  witness,  and  might  justly  detract  from  the  weight 
of  his  testimony;  and  so  might  the  character  of  a  witness  for  the  spe- 
cific blemish  of  licentiousness,  especially  in  the  female  sex.  But  where 
shall  we  stop  the  enquiries  ?  Witnesses,  who  can  have  no  opportunity  to 
exculpate  themselves  or  give  explanations  of  their  acts,  ought  not  to  be 
exposed  to  unjust  obloquy,  nor  should  the  trial  be  complicated  and  pro- 
longed by  trying  collateral  issues.  If  it  were  wise  and  just  to  enquire 
for  one's  reputation  for  virtue,  why  not  for  gambling,  horse-racing, 
drunkenness,  sabbath-breaking,  etc.  ?"^ 


Topic  II :     Evidence  to  Prove  Bias,  Interest,  Etc. 

ELLSWORTH  v.  POTTER  (1869). 
41  Vt.  689. 

Trespass  q.  c.  f.,  by  breaking  into  the  plaintiff's  premises  and  mak- 
ing a  disturbance.  On  trial  the  defendant  introduced  Dwight  H.  Rudd 
as  a  witness  in  their  behalf,  who  testified  to  material  facts  tend- 
^^^  ing  to  prove  that  some  of  the  defendants  were  not  at  the  plain- 
tiff's house  on  the  occasion  referred  to.  On  cross  examination  he  was 
inquired  of  by  the  plaintift''s  counsel  if  he  had  had  any  difficulty  with 
the  plaintiff,  and  testified  that  he  had  not.  The  plaintiff  in  her  rebut- 
ting testimony  offered  to  show  the  state  of  feeling  or  feelings  of  hos- 
tility existing  toward  her  on  the  part  of  the  witness — that  there  had 
been  a  quarrel  between  them,  and  that  she  turned  the  witness  out  of 
her  house, — which  was  objected  to  by  the  defendants,  but  admitted  by 
the  court,  for  that  purpose  only;  to  which  decision  the  defendants  ex- 
cepted. 

Steele,  J. :  "Dwight  Rudd,  a  witness  for  the  defendants,  testified 
that  he  had  no  difficulty  with  the  plaintiff.  The  plaintiff  was  at  liberty 
not  only  to  contradict  this  in  general  terms,  but  also  and  under 
the   direction    of   the    Court    to    state    enough   to    indicate    the    extent 

I — Compare  the  authorities  cited  in  W.,  The  use   of  reputation  to  evidence  char- 

§§  922-924.  acter    is    considered    under    the    Reputation 

The    witness'    personal    opinion    of   char-  exception   to   the   Hearsay   rule,  post,    Nos. 

acter  is  considered  under  the  Opinion  rule,  319-322. 
post,   Nos.    424-426. 


No.  120.  CONDUCT,  AS  EVIDENCE  OF  CHARACTER.  123 

or  degree  of  the  difficulty  and  consequent  ill-feeling.  .  ,  .  This  testimony- 
was  not  intended  or  calculated  to  show  which  party  was  in  fault,  but 
only  the  degree  of  estrangement  between  them.  It  is  impracticable  by 
any  general  rule  to  fix  a  precise  limit  which  should  govern  the  admis- 
sion of  such  evidence,  and  necessarily  it  must  be  left  to  a  considerable 
extent  to  the  discretion  of  the  nisi  prius  Court."^ 


TRINITY  COUNTY  LUMBER  CO.  v.  DENHAM   (1895). 

88  Tex.  203,  so  S.  W.  856. 

Brown,  J. :     "If  it  be  admitted,  however,  that   Borden  had   parted 
with  his   interest   in  the  suit  before  he  first  gave   his  testimony,   still 

we  think  it  was  permissible  to  show  that  he  had    been    inter- 

119 

ested  in  the  case,  the  extended  character  of  that  interest,  and  the 

time  and  circumstances  under  which  he  parted  with  his  interest,  all  of 
which  would  go  to  his  credibility.  At  common  law  a  witness  was  ren- 
dered incompetent  to  testify  by  reason  of  his  interest  in  the  result  of 
the  suit.  A  release  would  restore  his  competency,  but  it  is  by  no  means 
certain  that  it  would  remove  from  his  mind  the  bias,  if  any,  that  such 
interest  would  occasion ;  and  every  fact  or  circumstance  which  would 
tend  to  show  to  the  jury  his  relation  to  the  case  or  the  parties  was  ad- 
missible, in  order  that  they  might  determine  what  weight  they  ought  to 
give  to  his  evidence." 


Topic  III  :     Conduct,  as  Evidence  of  Character. 

ROOKWOOD'S   TRIAL   (1696). 

13  How.  St.  Tr.  20Q. 

Sir  B.  Shower  (for  the  defendant)  :  "We  will  call  some  other  wit- 
nesses to  Mr.  Porter's  [the  chief  witness  for  the  Crown]  reputation  and 
behavior ;  we  think  they  will  prove  things  as  bad  as  an  attainder." 
1""  .  .  .  L.  C.  J.  Holt  :  "You  must  tell  us  what  you  call  them  to." 
Sir  B.  Shozver:  "Why,  then,  my  lord,  if  robbing  upon  the  highway,  if 
clipping,  if  conversing  with  clippers,  if  fornication,  if  buggery,  if  any  of 
these  irregularities  will  take  off  the  credit  of  a  man,  I  have  instructions 
in  my  brief  of  evidence  of  crimes  of  this  nature  and  to  this  purpose 
against  Mr.  Porter ;  and  we  hope  that  by  law  a  prisoner  standing  for  his 
life  is  at  liberty  to  give  an  account  of  the  actions  and  behavior  of  the 
witnesses  against  him.  I  know  the  objection  that  Mr.  Attorney  [-Gen- 
eral] makes, — that  a  witness  does  not  come  prepared  to  vindicate  and 
give  an  account  of  every  action  of  his  life,  and  it  is  not  commonly  al- 
lowed to  give  evidence  of  particular  actions.  But  if  those  actions  be 
repeated,  and  a  man  lives  in  the  practice  of  them,  and  this  practice  is 

2 — Compare  the  citations  in  W.,  §§  95 1.   952- 


124  TESTIMONIAL   IMPEACHMENT.  No.  120. 

continued  for  several  years,  and  this  be  made  out  by  evidence,  we  hope 
that  no  jury  that  have  any  conscience  will  upon  their  oaths  give  any 
credit  to  the  evidence  of  a  person  against  whom  such  a  testimony  is 
given."  .  ,  .  Mr.  Attorney-General  Trevor:  "My  lord,  they  themselves 
know  that  this  sort  of  evidence  never  was  admitted  in  any  case,  nor  can 
be,  for  it  must  tend  to  the  overthrow  of  all  justice  and  legal  proceedings; 
for,  instead  of  trying  the  prisoner  at  the  bar,  they  would  try  Mr.  Porter. 
It  has  been  always  denied,  where  it  comes  to  a  particular  crime  that  a 
man  may  be  prosecuted  for;  and  this,  it  seems,  is  not  one  crime  or 
two,  but  so  many  and  so  long  continued,  as  they  say,  and  so  often  prac- 
tised, that  here  are  the  whole  actions  of  a  man's  life  to  be  ripped  up; 
which  they  can  never  show  any  precedent  when  it  was  permitted,  because 
a  man  has  no  opportunity  to  defend  himself.  Any  man  in  the  world 
may  by  this  means  be  wounded  in  his  reputation,  and  crimes  laid  to  his 
charge  that  he  never  thought  of,  and  he  can  have  no  opportunity  of 
giving  an  answer  to  it  because  he  never  imagined  there  would  be  any 
such  objection.  It  is  killing  a  man  in  his  good  name  by  a  side- wound, 
against  which  he  has  no  protection  or  defence.  My  lord,  this  must  tend 
to  the  preventing  all  manner  of  justice;  it  is  against  all  common  sense 
or  reason;  and  it  never  was  offered  at  by  any  lawyer  before,  as  I  be- 
lieve,— at  least,  never  so  openly;  and  therefore  I  wonder  that  these  gen- 
tlemen should  do  it,  who  acknowledge — at  least  one  of  them  did — that 
as  often  as  it  has  been  now  offered  it  has  been  overruled;  and  I  know 
not  for  what  end  it  is  offered  but  to  make  a  noise  in  the  Court."  .  .  . 
Sir  B.  Shower:  "My  lord,  .  .  .  we  conceive,  with  submission,  we  may 
be  admitted  in  this  case  to  offer  what  we  have  offered.  Suppose  a  man 
be  a  common,  lewd,  disorderly  fellow,  one  that  frequently  swears  to 
falsehood  for  his  life.  We  know  it  is  a  common  rule  in  point  of  evi- 
dence that  against  a  witness  you  shall  only  give  an  account  of  his  char- 
acter, at  large,  of  his  general  conversation.  But  that  general  conversa- 
tion arises  from  particular  actions;  and  if  the  witnesses  give  you  an 
account  of  such  disorderly  actions  repeated,  we  hope  that  will  go  to  his 
discredit ;  which  is  that  we  are  now  laboring  for."  L.  C.  J.  Holt  :  "Look 
ye,  you  may  bring  witnesses  to  give  an  account  of  the  general  tenor  of 
his  conversation ;  but  you  do  not  think  sure  that  we  will  try  now  at  this 
time  whether  he  be  guilty  of  robbery  or  buggery." 


OXIER  V.  UNITED  STATES   (1896). 

I  Ind.  T.  85,  38  S.  W.  331. 

Lewis,  J. :  "There  is  a  clear  distinction  recognized  by  the  authorities 
cited  above,  between  impeaching  a  witness  by  proof  of  facts  which  dis- 
credit him,  made  independently  of  his  examination,  and  by  proof 
^^^      of  the  same  facts  elicited  in  his  cross-examination.    Proof  of  par- 
ticular facts  tending  to  impair  his  credibility,  made  independently  of  his 


No.  123.  CONDUCT^    AS    EVIDENCE    OF    CHARACTER.  125 

own  examination,  is  excluded  for  the  reason  that  its  admission  would  en- 
gender a  multiplicity  of  collateral  issues,  and  would  frequently  surprise  a 
witness  with  matter  which  he  could  not  be  prepared  to  disprove.  But 
these  reasons  do  not  apply  to  his  cross-examination  as  to  the  same 
facts,  because  the  witness,  better  than  any  one  else,  can  explain  the 
impeaching  matter,  and  protect  himself  to  the  extent  that  explanation 
will  protect  him;  the  cross-examining  party  being  bound  by  his  replies." 


PEOPLE  V.  JACKSON  (1857). 

5  Park.  Cr.  396. 

Strong,  J.:  "[Conduct  derogatory  to  the  witness'  character]  may  be 
proved  provided  it  does  not  raise  or  tender  a  collateral  issue.  Thus,  it 
may  be  proved  that  a  proposed  witness  has  been  convicted  of  an 
infamous  offence,  by  producing  the  record.  That  raises  no  collat- 
eral issue  of  fact,  as  the  record  is  conclusive,  and  there  can  be  no  further 
inquiry.  But  it  is  not  competent  to  prove  that  the  witness  has  in  fact 
committed  a  crime,  if  he  has  not  been  convicted,  although  the  actual 
perpetration  of  the  crime  is  what  renders  him  unworthy  of  belief.  That, 
if  permitted,  might  raise  a  collateral  issue  for  trial." 


STATE  V.  GREENBURG   (1898). 

5g  Kan.  404,  55  Pac.  61. 

Johnston,  J.:    "Jacob  Greenburg  was  convicted  in  the  district  court 

of  Bourbon  county  for  feloniously  receiving  stolen  goods,  knowing  them 

to  have  been  stolen.  .  .  .  Meyer  Berkson,  who  testified  in  behalf 

1  OQ 

of  the  defendant,  was  cross-exammed  as  to  his  past  life  and  con- 
duct, with  a  view  of  impairing  his  credit ;  and,  after  stating  that  he 
had  been  under  arrest,  he  was  asked  what  he  had  been  arrested 
for,  when  an  objection  was  made  that  the  record  was  the  best  evidence, 
and,  further,  that  it  was  only  a  civil  arrest.  .  .  .  Granting  that  the  ob- 
jections were  sufficient  to  raise  the  question,  the  testimony  was  per- 
missible, under  the  rule  which  has  long  been  recognized  in  this  state. 
For  the  purpose  of  judging  the  character  and  credit  of  a  witness,  he 
may  be  cross-examined  as  to  specific  facts  tending  to  disgrace  or  degrade 
him,  although  collateral  to  the  main  issue,  and  touching  on  matters  of 
record.  Such  questions  arc  allowed  when  there  is  reason  to  believe 
that  it  will  tend  to  the  ends  of  justice,  and  are  asked  for  the  purpose  of 
honestly  discrediting  the  witness.  It  is  the  duty  of  the  court  to  sec 
that  the  rule  is  not  abused,  or  the  cross-examination  unreasonably  ex- 
tended." 

DosTER,  C.  J.  (dissenting)  :  "An  arrest  is  nothing  more  than  an 
accusation  of  crime  or  other  act  of  turpitude.  That  it  is  made  in  the 
form  of  a  forcible  restraint  of  the  person,  based  upon  a  sworn  com- 
plaint, makes  it,  for  purposes  of  disgrace  or  discredit,  no  stronger  evi- 


126  TESTmOXIAL   IMPEACHMENT.  No.  123. 

dence  of  the  truth  of  the  accusation  than  an  oral  statement  by  the  ac- 
cuser would  be.  No  one  would  contend  that  a  witness  could  be  asked 
whether  another  person  had  not  orally  accused  him  of  crime.  Why 
should  the  rule  be  different  when  the  accusation  has  been  written  out 
and  sworn  to?  It  is  but  an  accusation  in  each  case.  Why  should  it 
be  different  when  the  sworn  accusation  is  followed  by  an  arrest?  The 
arrest  is  but  a  reassertion  of  the  accusation  in  another  form.  It  is  quite 
different,  however,  when  the  accusation  has  been  proved.  When  the 
proceeding  has  passed  from  accusation  to  conviction,  evidence  of  the 
turpitude  of  the  witness  exists, — not  what  somebody  said  of  him,  but 
what  the  judicial  tribunals  sitting  in  judgment  upon  the  accusation  have 
found  against  him." 


WATSON'S  TRIAL   (1817). 

32  How.  St.  Tr.  2^5,  2Qy. 

That  his  friends  were  felons ;  that  he  was  a  bigamist ;  that  he  had 
been  employed  in  a  house  of  ill-fame,  etc.,  were  allowed  to  be  the  sub- 
jects of  questioning;  then  limits  were  drawn;  Mr.  Wetherell,  cross- 
^^  examining:  "Did  you  [being  married]  ever  make  proposals  o£ 
marriage  to  any  person  within  these  three  or  four  years?"  L.  C.  J. 
Ellenborough  :  "How  can  that  question  be  asked?  I  will  put  it  to  your 
own  feelings,  your  own  good  sense."  Mr.  Wetherell:  "I  will  not  carry  it 
further."  Another  witness  admitted  one  Dickens  to  have  been  his  com- 
panion. Mr.  Wetherell,  cross-examining :  "Do  you  not  know  that  it  is  the 
same  Dickens  that  was  discharged  at  the  Old  Bailey  as  the  associate  of  a 
man  of  the  name  of  Vaughan  in  hatching  up  those  conspiracies?"  A.  "I 
do  not  know."  L.  C.  T-  Ellenborough  :  How  can  we  know  this  ?" 
Mr.  Wetherell:  "My  object  is,  to  show  that  this  man's  associates  are 
all  felons  or  the  most  base  of  mankind."  L.  C.  J.  Ellenborough  :  "This 
is  really  very  irregular.  ...  It  is  really  corrupting  all  justice  when 
such  prejudices  are  introduced.  The  Court  are  of  opinion  that  the  ques- 
tion should  not  be  put." 


R.  V.  CASTRO,  alias  TICHBORNE  (1873). 

32d  day,  Kenealy's  ed.,  I,  ^pd,  Report  of  the  Charge,  II,  y20,  y22. 

Lord  B.,  who  had  testified  to  the  tattoo-marks  on  Roger  Tichborne, 
was  cross-examined:  Dr.  Kenealy,  for  defendant:  "Did  you  play  a 
practical  joke  [on  Captain  H.]  ?"  .  .  .  L.  C.  J.  Cockburn  :  "It 
^^  may  be  a  practical  joke  of  such  a  nature  that  the  jury  would 
disbelieve  the  evidence  on  his  oath,  on  its  being  made  known  to  them. 
We  must  leave  that  to  the  discretion  of  Dr.  Kenealy."  .  .  .  Dr.  Kenealy: 
"It  was  not  a  practical  joke.  Did  you  take  away  his  wife."  Lord  B.: 
"1  cannot  answer  that  question."  .  .  .  Dr.  Kenealy:     "Did  you  seduce 


No.  126.  CONDUCT,    AS    EVIDENCE    OF    CHARACTER.  127 

his  wife  and  make  her  elope  from  her  husband?  ...  I  am  sorry  to  have 
to  ask  my  lord  to  tell  you  you  must  answer  it."  L.  C.  J.  Cockburn  : 
"1  certainly  shall  not."  Dr.  Kenealy :  "Indeed  you  must,  my  lord!  It 
goes  to  the  witness'  credit.  I  must  have  it  answered,  my  lord."  .  .  .  L. 
C.  J.  Cockburn  :  "I  am  afraid,  if  the  question  is  pressed,  you  [the  wit- 
ness] must  answer  it.  It  is  one  of  the  consequences  of  being  brought 
into  a  court  oi  justice  as  a  witness  that  whatever  he  has  done  may  be 
brought  up  against  him."  Upon  charging  the  jury,  L.  C.  J.  Cockburn 
adverted  to  this  examination  as  follows :  "Lord  B.  has  committed  a 
wo  fully  sad  sin;  .  .  .  another  man's  wife  left  her  husband  and  joined 
him,  and  they  have  lived  together;  .  .  .  [Counsel]  asks  you  deliberately 
to  come  to  the  conclusion  that  because  of  this  offence  Lord  B.  is  not 
to  be  believed  upon  his  oath, — nay,  more,  that  you  must  assume  him  to 
be  perjured.  Is  that,  do  you  think,  a  view  that  you  can  properly  adopt? 
Is  it  because  a  man  has  committed  a  breach  of  morality,  however 
flagrant,  that  those  to  whom  his  testimony  may  be  important  in  a  court 
of  justice  are;  to  be  deprived  of  it?  .  .  .  There  are  crimes  and  offences 
which  savor  so  much  of  falsehood  and  fraud  that  they  do  go  legitimately 
to  the  credit  of  witnesses.  There  are  offences  of  a  different  character, 
and  grievous  offences  if  you  will,  but  which  do  not  touch  that  particular 
part  of  a  man's  moral  organization — if  I  may  use  the  phrase — which 
involves  truth ;  and  there  is  an  essential  distinction  between  this  species 
of  fault  and  those  things  which  go  to  the  very  root  of  honesty,  integrity, 
and  truth,  and  so  do  unfortunately  disentitle  witnesses  to  belief."^ 


THIRD  GREAT  WESTERN  TURNPIKE  CO.  v.  LOOMIS   (1865). 

^2  N.  Y.  127,  1^2. 

The  trial  Court  had  excluded,  as  immaterial  to  the  main  issue,  ques- 
tions attacking  the  witness'  character,  no  privilege  having  been  claimed; 
the  question  of  law  was  whether  this  could  be  done  "in  the  sound 
discretion"  of  that  Court;  on  mtermediate  appeal  the  answer  was 

I — Sir  James  Stephen,  History  of  the  ciuently  known  cases  in  which  evidence  of 
Criminal  Law,  I,  433  (1883):  "The  most  decisive  importance  was  procured  by  ask- 
difficult  point  as  to  cross-examination  is  i^g  people  of  apparent  respectability  ques- 
the  question  how  far  a  witness  may  be  jions  which,  when  first  put,  appeared  to  be 
cross-examined  to  his  credit  by  being  asked  offensive  and  insulting  in  the  highest  de- 
about  transactions  irrelevant  to  the  mat-  grge.  I  remember  a  case  in  which  a  so- 
ter  at  issue,  except  so  far  as  they  tend  Hcitor's  clerk  was  indicted  for  embczzle- 
to  show  that  the  witness  is  not  to  be  ,„cnt.  His  defence  was  that  his  employer 
believed  upon  his  oath.  No  doubt  such  had  brought  a  false  charge  against  him  to 
questions  may  be  oppressive  and  odious.  conceal  (I  think)  forgery  committed  by 
They  may  constitute  a  means  of  gratify-  himself.  The  employer  seemed  so  respect- 
ing personal  malice  of  the  basest  kind,  able  and  the  prisoner  so  discreditable  that 
and  of  deterring  witnesses  from  coming  the  prisoner's  counsel  returned  his  brief 
forward  to  discharge  a  duty  to  the  public.  rather  than  ask  the  questions  suggested  by 
At  the  same  time  it  is  impossible  to  de-  his  client.  The  prisoner  thereupon  asked 
vise  any  rule  for  restricting  the  latitude  the  questions  himself,  and  in  a  very  few 
which  at  present  exists  upon  the  subject,  minutes  satisfied  every  person  in  court 
without  doing  cruel  injustice.      I  have  fre-  that  what  he  had  suggested  was  true." 


128  TESTIMONIAL  IMPEACHMENT.  No.  126. 

negative,  but  the  trial  Court's  ruling  was  on  further  appeal  sustained. 
Porter,  J.:  "If  the  judgment  of  the  Court  below  be  upheld  by  the 
sanction  of  this  tribunal,  it  will  embody  in  our  system  of  jurisprudence 
a  rule  fraught  with  infinite  mischief.  It  will  subject  every  witness  who, 
in  obedience  to  the  mandate  of  the  law,  enters  a  court  of  justice  to  tes- 
tify on  an  issue  in  which  he  has  no  cencern,  to  irresponsible  accusation 
and  inquisition  in  respect  to  every  transaction  of  his  life  affecting  his 
honor  as  a  man  or  his  character  as  a  citizen.  It  has  heretofore  been 
understood  that  the  range  of  irrelevant  inquiry  for  the  purpose  of  de- 
grading a  witness  was  subject  to  the  control  of  the  presiding  judge, 
who  was  bound  to  permit  such  inquiry  when  it  seemed  to  him  in  the 
exercise  of  a  sound  discretion  that  it  would  promote  the  ends  of  jus- 
tice, and  to  exclude  it  when  it  seemed  unjust  to  the  witness  and  un- 
called for  by  the  circumstances  of  the  case.  The  judgment  now  under 
review  was  rendered  on  the  assumption  that  it  is  the  absolute  legal 
right  of  a  litigant  to  assail  the  character  of  every  adverse  witness,  to 
subject  him  to  degrading  inquiries,  to  make  inquisition  into  his  life,  and 
drive  him  to  take  shelter  under  his  privilege  or  to  self-vindication  from 
unworthy  imputations  wholly  foreign  to  the  issue  on  which  he  is  called 
to  testify.  The  practical  effect  of  such  a  rule  would  be  to  make  every 
witness  dependent  on  the  forbearance  of  adverse  counsel  for  that  pro- 
tection from  personal  indignity  which  has  been  hitherto  secured  from 
our  courts,  unless  the  circumstances  of  the  particular  case  made  collat- 
eral inquiries  inappropriate.  This  rule  .  .  .  would  perhaps  operate  most 
oppressively  in  trials  before  inferior  magistrates,  where  the  parties  ap- 
pear in  person,  or  are  represented  by  those  who  are  free  from  a  sense  of 
personal  responsibility.  .  .  .  The  practice  which  has  heretofore  pre- 
vailed in  this  respect  has  been  satisfactory  to  the  community,  the  bench, 
and  the  bar.  Questions  of  this  nature  can  be  determined  nowhere  more 
safely  or  more  justly  than  in  the  tribunal  before  which  the  examination 
is  conducted.  Justice  to  the  witness  demands  that  the  Court  to  which 
he  appeals  for  present  protection  shall  have  the  power  to  shield  him 
from  indignity,  unless  the  circumstances  are  such  that  he  cannot  fairly 
invoke  that  protection.  .  ,  .  [The  opposite  view]  ignores  the  indignity 
of  a  degrading  imputation  when  there  is  nothing  in  the  circumstances 
of  the  case  to  justify  it.  It  ignores,  too,  the  humiliation  of  public  ar- 
raignment by  an  irresponsible  accuser,  misled  by  an  angry  client,  and 
shielded  by  professional  privilege.  Few  men  of  character  or  women 
of  honor  could  suppress,  even  on  the  witness-stand,  the  spirit  of  just 
resentment  which  such  an  examination,  on  points  alien  to  the  case, 
would  naturally  tend  to  arouse.  The  indignation  with  which  sudden 
and  unworthy  imputations  are  repelled  often  leads  to  injurious  miscon- 
struction. A  question  which  it  is  alike  degrading  to  answer  or  to  de- 
cline to  answer  should  never  be  put,  unless  in  the  judgment  of  the  Court 
it  is  likely  to  promote  the  ends  of  justice.  A  rule  which  would  license 
indiscriminate  assaults  on  private  character,  under  the  forms  of  law, 


No.  126.  CONDUCT,  AS  EVIDENCE  OF  CHARACTER.  129 

would  contribute  little  to  the  development  of  truth  and  still  less  to  the 
furtherance  of  justice.  .  .  .  Unless  there  be  a  plain  abuse  of  discretion, 
decisions  of  this  nature  are  not  subject  to  review  on  appeal."^ 


Topics  IV,  V:     Error,  as  Shown  by  Contradiction  or  Self- 

CONTRADICTION. 

WHITEBREAD'S  TRIAL  (1679). 

7  How.  St.  Tr.  311,  S74- 

The  defendant  offered  to  prove  that  the  principal  crown  witness, 
Oates,  had  made  a  false  statement  as  to  his  companions,  in  his  testimony 
at  a  prior  trial  for  the  Popish  Plot.  L.  C.  J.  North  :  "That  is 
^^*  nothing  to  the  purpose.  If  you  can  contradict  him  in  anything 
that  hath  been  sworn  here,  do."  Defendant :  "If  we  can  prove  him  a 
perjured  man  at  any  time,  we  do  our  business."  L.  C.  J.  North  :  "How 
can  we  prove  one  cause  in  another  ?  .  .  .  Can  he  come  prepared  to  make 
good  everything  that  he  hath  said  in  his  life?"  Another  defendant: 
"All  that  I  say  is  this,  If  he  be  not  honest,  he  can  be  witness  in  no  case." 
L.  C.  J.  North  :  "But  how  will  you  prove  that?  Come  on,  I  will  teach 
you  a  little  logic.  If  you  will  come  to  contradict  a  witness,  you  ought 
to  do  it  in  a  matter  which  is  the  present  debate  here ;  for  if  you  would 
convict  him  of  anything  that  he  said  in  Ireland's  trial,  we  must  try 
Ireland's  cause  over  aerain." 


EARL  OF  CASTLEMAINE'S  TRIAL  (1680). 

7  How.  St.  Tr.  1067,  1081,  HOT. 

Treason ;   the  chief  witness   for  the   prosecution,   Titus  Oates,   was 

cross-examined  as  to  having  said  things  about  the  accused's  divorce,  and 

witnesses  were  then  called  to  contradict  his  answers.     Attornev- 
12s 

General:     "If  he  may  ask  questions  about  such  foreign  matters 

as  this,  no  man  can  justify  himself;  .  .  .  any  man  may  be  catched  thus." 

Defendant:     "How   can   a  man  be   catched   in   the   truth?"     L.   C.   J. 

ScROGGs:     "We  are  not  to  hearken  to  it.    The  reason  is  this,  first:    You 

must  have  him  perjured,  and  we  are  not  now  to  try  whether  that  thing 

sworn  in  another  place  be  true  or  false;  because  that  is  the  way  to 

accuse  whom  you  please,  and  that  may  make  a  man  a  liar  that  cannot 

imagine  this  will  be  put  to  him ;  and  so  no  man's  testimony  that  comes 

to  be  a  witness  shall  leave  himself  safe."^ 

2 — Compare   the  authorities  cited  in,  W.,  sidered  post,    Nos.  456,   457;   and  his  priv- 

§§  979-987.  ilege    not    to    answer    criminating    questions 

The     witness'     privilege     not     to  anszvcr  is  considered  post,   Nos.   492,  493. 

questions   involving  moral   disgrace  is  con-  3-A,ion.,  Green   Bag,   1898,  X,   53:   "My 


130  TESTIMONIAL  IMPEACHMENT.  No.  129. 

BLAKEY'S  HEIRS  v.  BLAKEY'S  EXECUTRIX  (1859). 
33  Ala.  611,  613,  619. 

Probate  of  a  will.  The  contestants  introduced  evidence  conducing 
to  show  that  the  will  was  procured  by  the  exercise  of  undue  influence 
over  the  testator  by  the  proponent;  and  for  this  purpose  they 
■^^^  adduced  proof  of  the  testator's  declarations,  both  before  and 
after  the  execution,  to  the  effect  that  he  did  not  wish  to  make  such  a 
will,  but  was  induced  to  make  it  by  his  wife's  importunities,  "and  for 
the  sake  of  peace  in  the  family."  One  Stanley,  a  witness  for  the  con- 
testants, who  testified  to  these  declarations  of  the  testator,  further  stated, 
"that  Dr.  Gradick  attended  him  [testator]  in  his  sickness,  and  that  Dr. 
Gradick  then  lived  in  Centreville  in  said  county;"  also,  "that  he  [wit- 
ness] had  known  the  testator  for  about  twenty  years,  lived  within  a 
mile  of  his  house,  and  had  always  been  very  friendly  and  intimate  with 
him,  until  three  or  four  years  before  his  death,  when  a  coolness  sprang 
up  between  them  on  account  of  a  school."  The  proponent,  in  rebuttal 
of  the  evidence  adduced  by  the  contestants,  introduced  a  witness  who 
testified,  "that  he  [witness]  came  to  Centreville  in  March,  1853,  and 
that  Dr.  Gradick  did  not  reside  there  during  any  portion  of  the  balance 
of  that  year ;"  and  another  witness  who  testified  to  declarations  of  the 
witness  Stanley,  made  fifteen  years  before  the  trial,  to  the  effect  that 
unfriendly  relations  then  existed  between  him  and  the  testator.  The 
contestants  objected  to  the  competency  of  the  testimony  of  each  of  these 
witnesses,  and  reserved  exceptions  to  the  rulings  of  the  court  in  admit- 
ting it. 

R.  W.  Walker,  J.  (holding  the  ruling  to  be  erroneous)  :  "In  Dozier 
V  Joyce*  it  seems  to  have  been  considered  that  the  main  reason  for  the 
rule  which  prevents  a  cross-examination  upon  immaterial  matters  for 
the  mere  purpose  of  contradicting  the  witness,  is  that  he  cannot  be  pre- 
sumed to  come  prepared  to  defend  himself  on  such  collateral  questions ; 
and  that,  as  this  reason  fails  when  the  testimony  is  voluntarily  given, 
the  rule  itself  does  not  in  that  case  apply.  The  reason  referred  to  is 
doubtless  one  of  those  on  which  the  rule  was  founded,  but  it  is  not  the 
only  or  even  the  chief  one.  The  principal  reasons  of  this  rule  are,  un- 
doubtedly, that  but  for  its  enforcement  the  issues  in  a  cause  would  be 

poor    old    confessor,    Father    Grady,"    said  Latin?'     'A   little.'      'What   words  did   you 

O'Connell,    "who    resided    with    my    uncle  hear  him  say?'     'Ave  Maria.'     'That  is  the 

when    I    was   a   boy,    was    tried    in    Tralee  Lord's  Prayer,  is  it  not?'  asked  the  judge, 

on    the    charge    of    being   a    Papish    priest,  'Yes,   my   Lord,'    was   the   fellow's   answer. 

but    the    judge    defeated    Grady's    prosecu-  'Here    is    a    pretty   witness    to   convict   the 

tors.     There  was  a  flippant  scoundrel  who  prisoner,'    cried    the    judge.       'He    swears 

came  forward  to  depose  to   Father  Grady's  Ave  Maria  is  Latin  for  the  Lord's  Prayer.' 

having    said    mass.        'Pray,    sir,'    said    the  The    judge   charged    the   jury    for   the    pris- 

judge,    'how    do    you    know   he    said    mass?'  oner,   so  my   poor  old   friend   Father  Grady 

'Because    I    heard    him    say    it,    my    Lord.'  was   acquitted." 

'Did   he   say   it  in   Latin?'  asked  the  judge.  4 — 8    Porter    303. 
'Yes,    my    Lord.'      'Then    you    understand 


No.  131.  CONTRADICTION   AND  SELF-CONTRADICTION.  131 

multiplied  indefinitely,  the  real  merits  of  the  controversy  would  be  lost 
sight  of  in  the  mass  of  testimony  to  immaterial  points,  the  minds  of 
jurors  would  thus  be  perplexed  and  confused,  and  their  attention  wearied 
and  distracted,  the  costs  of  litigation  would  be  enormously  increased,  and 
judicial  investigations  would  become  almost  interminable.  An  additional 
reason  is  found  in  the  fact  that,  the  evidence  not  being  to  points  material 
in  the  case,  witnesses  guilty  of  false  swearing  could  not  be  punished  for 
perjury.  These  reasons  apply  equally  whether  the  evidence  on  such 
collateral  matters  is  brought  out  on  the  examination  in  chief  or  upon 
cross-examination,  and  whether  the  witness  gives  it  voluntarily  or  in 
responce  to  questions  calling  for  it."^ 


BERKELEY  PEERAGE  TRIAL  (1811). 

Sherwood's  Abstract,   180,   ip2,  ^75. 

The  issue  was  whether  Lord  and  Lady  Berkeley  were  married  before 
their  eldest  son  was  born,  and  this  again  turned  mainly  upon  the  genu- 
ineness or  forgery  of  an  entry  in  the  marriage  register  made  in 
^^"  the  name  of  Hupsman,  the  parish  vicar;  Lady  Berkeley  claimed 
its  genuineness;  Nicholas  Hicks,  an  attorney,  was  offered  to  prove  this, 
and  swore  convincingly,  as  being  well  acquainted  with  the  writing;  he 
was  asked  at  the  beginning  of  his  cross-examination:  "Have  you  been 
conversing  with  anybody  lately  as  to  this  handwriting?"  "I  have  not;" 
the  time  of  the  trial  being  May.  "You  have  not  been  at  Spring  Gar- 
dens, [Lady  Berkeley's  residence],  lately,  have  you?"  "I  have  not;  not 
to  converse  with  anybody  on  the  subject."  "Have  you  been  there?" 
"I  have  been  there  several  times."  "Whom  did  you  go  to  there?"  "I 
saw  Lady  Berkeley."  "Do  you  mean  to  say  you  have  not  talked  with 
anybody  since  you  came  to  London  as  to  the  manner  in  which  Hupsman 
wrote?"  "I  have  not."  After  a  long  series  of  questions  on  other  mat- 
ters, the  cross-examiner  finally  returned  and  asked  how  he  came  to  be 
a  witness,  when  he  said  that  he  had  told  Lady  Berkeley  that  he  could 
identify  the  register  entry.  "When?"  "I  think  in  the  month  of  April." 
"It  was  in  Spring  Gardens  you  went  to  Lady  Berkeley?"  "Yes."  "And 
you  there  told  her  you  could  swear  to  Hupsman's  handwriting?"  "Yes." 
"And  that  was  what  passed  between  you?"  "Yes."  Whereupon  his 
first  answers  above  were  read ;  and  he  was  later  committed  to  Newgate 
for  contempt  of  the  House. 


ATTORNEY-GENERAL  v.  HITCHCOCK    (1847). 

/  Exch.  pi. 

Information  at  the  suit  of  the  Attorney-General,  which  charged  the 

defendant,  a  maltster,  with  having  used  a  certain  cistern   for  making 

malt  without  having  previously  entered  it.  as  required  by  statute. 

^^^       At   the   trial,   before   Pollock,   C.    B.,   a   witness   of  the   name  of 

5 — Compare  the   authorities   cited   in   W.,   §§  1003-1007. 


132  TESTIMONIAL   IMPEACHMENT.  No.  131. 

Spooner,  who  deposed  to  the  fact  of  the  cistern  having  been  used  hy 
the  defendant,  was  asked,  on  cross-examination  by  the  defendant's  coun- 
sel, whether  he  had  not  said  that  the  officers  of  the  Crown  had  offered 
him  £20  to  say  that  the  cistern  had  been  used.  Spooner  denied  having 
said  so,  and  thereupon  the  defendant's  counsel  proposed  to  ask  another 
witness  of  the  name  of  Cook,  whether  Spooner  had  not  said  so.  The 
Attorney-General  objected  to  this  question,  and  the  Lord  Chief  Baron, 
being  of  opinion  that  the  question  was  irrelevant  to  the  issue,  and  that 
it  also  tended  to  raise  a  collateral  issue,  held  the  objection  good,  and 
ruled  that  it  could  not  be  put.    This  ruling  was  sustained. 

Pollock,  C.  B.  :  "My  view  has  always  been  that  the  test  whether 
the  matter  is  collateral  or  not  is  this:  If  the  answer  of  a  witness  is  a 
matter  which  you  would  be  allowed  on  your  part  to  prove  in  evidence, 
if  it  have  such  a  connection  with  the  issue  that  you  would  be  allowed 
to  give  it  in  evidence,  then  it  is  a  matter  on  which  you  may  contradict 
him.  ...  I  think  the  expression  'as  to  any  matters  connected  with  the 
subject  of  inquiry'  is  far  too  vague  and  loose  to  be  the  foundation  of 
any  judicial  decision.  And  I  may  say  I  am  not  all  prepared  to  adopt  the 
proposition  in  those  general  terms,  that  a  witness  may  be  contradicted 
as  to  anything  he  denies  having  said,  provided  it  be  in  any  way  connected 
with  the  subject  before  the  jury.  It  must  be  connected  with  the  issue 
as  a  matter  capable  of  being  distinctly  given  in  evidence,  or  it  must  be 
so  far  connected  with  it  as  to  be  a  matter  which,  if  answered  in  a  par- 
ticv:lar  way,  would  contradict  a  part  of  the  witness'  testimony;  and  if 
it  is  neither  the  one  nor  the  other  of  these,  it  is  collateral  to,  though 
in  some  sense  it  may  be  considered  as  connected  with,  the  subject  of 
the  inquiry.  A  distinction  should  be  observed  between  those  matters 
which  may  be  given  in  evidence  by  way  of  contradiction  as  directly 
affecting  the  story  of  the  witness  touching  the  issue  before  the  jury, 
and  those  matters  which  affect  the  motives,  temper,  and  character  of  the 
witness,  not  with  respect  to  his  credit,  but  with  reference  to  his  feel- 
ings towards  one  party  or  the  other.  It  is  certainly  allowable  to  ask 
a  witness  in  what  manner  he  stands  affected  toward  the  opposite  party 
in  the  cause,  and  whether  he  does  not  stand  in  such  a  relation  to  that 
person  as  is  likely  to  affect  him  and  prevent  him  from  having  an  un- 
prejudiced state  of  mind,  and  whether  he  has  not  used  expressions  im- 
porting that  he  would  be  revenged  on  some  one  or  that  he  would  give 
st'.ch  evidence  as  might  dispose  of  the  cause  in  one  way  or  the  other. 
If  he  denies  that,  you  may  give  evidence  as  to  what  he  said, — not  with 
the  view  of  having  a  direct  effect  on  the  issue,  but  to  show  what  is  the 
state  of  mind  of  that  witness  in  order  that  the  jury  may  exercise  their 
opinion  as  to  how  far  he  is  to  be  believed.  But  those  cases,  where  you 
m.ay  show  the  condition  of  a  witness  or  his  connection  with  either  of 
the  parties,  are  not  to  be  confounded  with  other  cases  where  it  is  pro- 
posed to  contradict  a  witness  on  some  matter  unconnected  with  the 
question  at  issue." 


No.  132.  CONTRADICTION   AND  SELF-CONTRADICTION.  133 

Alderson^  B.  :  "The  question  is  this,  Can  you  ask  a  witness  as  to 
what  he  is  supposed  to  have  said  on  a  previous  occasion?  You  may  ask 
him  as  to  any  fact  material  to  the  issue,  and  if  he  denies  it  you  may 
prove  that  fact,  as  you  are  at  hberty  to  prove  any  fact  material  to  the 
issue.  .  .  .  The  witness  may  also  be  asked  as  to  his  state  of  equal  mind 
or  impartiality  between  the  two  contending  parties, —  questions  which 
would  have  a  tendency  to  show  that  the  whole  of  his  statement  is  to 
be  taken  with  a  qualification,  and  that  such  a  statement  ought  really  to 
be  laid  out  of  the  case  for  want  of  impartiality ;  [and  these  answers  may 
be  contradicted].  .  .  .  Such,  again,  is  the  case  of  an  offer  of  a  bribe 
by  a  witness  to  another  person,  or  the  offer  of  a  bribe  accepted  by  a 
witness  from  another  person ;  the  circumstance  of  a  witness  having 
offered  or  accepted  a  bribe  shows  that  he  is  not  equal  and  impartial.  .  .  . 
But  with  these  exceptions  I  am  not  aware  that  you  can  with  propriety 
permit  a  witness  to  be  examined  first  and  contradicted  afterwards  on  a 
point  which  is  merely  and  purely  collateral.  .  .  .  Perhaps  it  ought  to 
be  received,  but  for  the  inconvenience  that  would  arise  from  the  witness 
being  called  upon  to  answer  to  particular  acts  of  his  life,  which  he 
might  have  been  able  to  explain  if  he  had  had  reasonable  notice  to  do 
so,  and  to  have  shown  that  all  the  acts  of  his  life  had  been  perfectly 
correct  and  pure,  although  other  witnesses  were  called  to  prove  the 
contrary.  The  reason  why  a  party  is  obliged  to  take  the  answer  of  a 
witness  is,  that  if  he  were  permitted  to  go  into  it,  it  is  only  justice  to 
allow  the  witness  to  call  other  evidence  in  support  of  the  testimony  he 
has  given,  and  as  those  witnesses  might  be  cross-examined  as  to  their 
conduct,  such  a  course  would  be  productive  of  endless  collateral  issues."* 


THE  QUEEN'S  CASE  (1820). 

2  B.  &  B.  ji^. 

Abbott,  C.  J. :  "If  it  be  intended  to  bring  the  credit  of  a  witness  into 
question  by  proof  of  anything  he  may  have  said  or  declared  touching 
the  cause,  the  witness  is  first  asked,  upon  cross-examination, 
whether  or  no  he  has  said  or  declared  that  which  is  intended  to 
be  proved.  If  the  witness  admits  the  words  or  declarations  imputed  to 
him,  the  proof  on  the  other  side  becomes  unnecessary,  and  the  witness 
has  an  opportunity  of  giving  such  reason,  explanation,  or  exculpation  of 
his  conduct,  if  any  there  may  be,  as  the  particular  circumstances  of  the 
transaction  may  happen  to  furnish ;  and  thus  the  whole  matter  is  brought 
before  the  court  at  once,  which  in  our  opinion  is  the  most  convenient 
course.  ...  [If  the  witness  denies  the  utterance  or  claims  the  privilege 
of  silence],  the  proof  in  contradiction  will  be  received  at  the  proper 
season.  But  the  possibility  that  the  witness  may  decline  to  answer  the 
question  affords  no  sufficient  reason  for  not  giving  him  the  opportunity 

6 — Compare  the   authorities  cited   in   W.,     §5  1020-1022. 


134  TESTIMONIAL   IMPEACHMENT.  No.  132. 

of  answering  and  of  offering  such  explanatory  or  exculpatory  matter  as 
I  have  before  alluded  to;  ...  not  only  for  the  purpose  already  men- 
tioned, but  because,  if  not  given  in  the  first  instance,  it  may  be  wholly 
lost,  for  a  witness  who  has  been  examined  and  has  no  reason  to  sup- 
pose that  his  further  attendance  is  requisite  often  departs  the  Court,  and 
may  not  be  found  or  brought  back  until  the  trial  be  at  an  end.  So  that, 
if  evidence  of  this  sort  could  be  adduced  on  the  sudden  and  by  surprise, 
without  any  previous  intimation  to  the  witness  or  to  the  party  producing 
him,  great  injustice  might  be  done,  .  .  .  and  one  of  the  great  objects  of 
the  course  of  proceeding  established  in  our  courts  is  the  prevention  of 
surprise,  as  far  as  practicable,  upon  any  person  who  may  appear 
therein."' 


DOWNER  V.  DANA  (1847). 

19  Vt.  345. 

T)ebt  on  a  bail  bond;  the  plaintiff  had  introduced  the  deposition, 
of  one  Rutter.  The  defendants,  for  the  purpose  of  impeaching  the 
witness  Rutter,  offered  to  prove  declarations  made  by  him  pre- 
vious  to  the  giving  of  the  deposition  used  in  the  case  by  the 
plaintiffs,  but  in  reference  to  which  no  preliminary  inquiry  had  been 
made  of  him.  To  this  the  plaintiffs  objected;  but  the  evidence  was  ad- 
mitted by  the  court.  Davis,  J. :  "Were  the  question  res  integra,  I 
confess  I  could  see  no  advantages  to  the  cause  of  truth  and  justice,  from 
the  adoption  of  this  rule  of  evidence,  which  are  not  equally  well  secured 
by  the  old  practice  of  allowing  the  party  whose  witness  has  in  that  way 
been  attacked  to  recall  him,  if  he  chose,  for  the  purpose  of  contradicting 
or  explaining  the  conduct  or  declarations  imputed  to  him.  Indeed,  I 
have  seen  no  objections  of  consequence  to  that  course,  except  that  it 
may  sometimes  happen  that  the  witness  may  have  departed  from  court 
supposing  his  attendance  no  longer  necessary.  Such  an  objection  prac- 
tically is  entitled  to  very  little  weight,  as  it  would  be  provided  against 
by  requiring,  as  is  in  fact  generally  done  for  other  reasons,  witnesses  to 
remain  in  court  until  the  testimony  is  finished.  On  the  other  hand,  this 
rule  would  be  productive  of  intolerable  mischiefs,  were  it  not  mitigated 
by  the  somewhat  awkward  and  inconvenient  expedient  of  suspending 
the  regular  course  of  testimony,  for  the  purpose  of  recalling  the  witness 
proposed  to  be  impeached  and  laying  a  foundation  for  the  impeaching 
testimony  by  interrogating  him  whether  he  did  or  said  the  things  pro- 
posed to  be  proved.  Besides,  the  privilege  of  doing  this  will  be  lost  in 
all  those  cases  where  the  witness  has  left  court  and  cannot  be  found; 
the  opposite  party  has  every  inducement  to  cut  off  this  opportunity  by 
immediately  discharging  all  such  as  he  may  have  reason  to  suspect  are 
liable  to  be  impugned.    In  addition  to  this,  the  avowed  attempt  to  pro- 

7 — Compare   the  authorities  cited   in  W.,  §§  1025-1029. 


No.  134.  CONTRADICTION   AND  SELF-CONTRADICTION.  135 

duce  self-impeachment,  made  of  course  in  a  tone  and  manner  evincing 
distrust  of  the  general  narrative,  too  often  both  surprises  and  discon- 
certs a  modest  witness.  He  answers  hastily  and  confusedly,  as  is  natural 
from  having  such  a  collateral  matter  hastily  spring  upon  him.  Every 
one  conversant  with  judicial  proceedings  must  have  often  observed  with 
pain  an  apparent  contradiction  produced  in  this  way,  when  he  is  satisfied 
none  would  have  existed  under  a  different  mode  of  proceeding.  .  .  .  To 
my  mind  these  considerations  present  very  formidable  objections  to  the 
practice  first  authoritatively  developed  on  the  trial  of  the  Queen  in  the 
House  of  Lords.  .  .  .  [But,  assuming  the  rule  to  be  in  general  a  part  of 
the  law,  its  enforcement  in  the  particular  case  now  before  the  Court] 
would  impose  on  a  party  wishing  the  privilege  of  impeachment  the 
necessity  of  attending,  in  person  or  by  counsel,  at  the  taking  of  every 
deposition  to  be  used  against  him,  within  or  without  the  State,  which 
on  any  other  account  he  might  not  be  disposed  to  do.  Besides,  in  many 
cases  the  deponent  may  be  wholly  unknown  to  him ;  he  may  have  no 
knowledge  of  the  matter  to  be  testified  to  until  actually  given ;  the  notice 
of  the  taking  may  be  barely  sufficient  to  enable  him  to  reach  the  place 
perhaps  hundreds  of  miles  distant,  in  season  to  be  present.  It  would  be 
idle  under  such  circumstances  to  expect  a  party  to  be  prepared  to  go 
through  with  this  preliminary  ceremony.  The  result  would  be,  he  would 
be  least  able  to  shield  himself  against  partial  or  false  testimony  precise- 
ly when  such  protection  is  most  needed.  It  is  true,  the  deponent,  being 
absent  from  the  trial,  hears  not  the  impeaching  testimony  and  cannot  be 
called  upon  to  contradict  or  explain  it.  This  may  be  an  evil,  but  it  is 
unavoidable  from  the  nature  of  the  case.  It  would  be  a  worse  evil  to 
deny  the  right  of  impeaching  depositions  unless  under  regulations  which 
would  reduce  the  right  to  a  nullity."^ 


Topic  VI :     Admissions. 

STATE  V.  WILLIS  (1898). 

yi  Conn,  ^pj,  41  Atl.  820. 

Hamersley,  J. :  "Admissions  are  not  admitted  as  testimony  of  the 
declarant  in  respect  to  any  facts  in  issue.  .  .  .  They  are  admitted  because 
conduct  of  a  party  to  the  proceeding,  in  respect  to  the  matter  in 
'*'*      dispute,  whether  by  acts,  speech,  or  writing,  which  is  clearly  in- 
consistent with  the  truth  of  his  contention,  is   a   fact  relevant  to  the 
issue. "^ 

8 — Compare  the  authorities  cited  in  \V.,  vided    they    be    voluntary,    are    admissible 

§§    1030-1034.  against   him,   as   it  is  fair  to  presume  they 

9 — Truby    v.    Seybert,     12    Pa.    St.      loi  correspond    with    the    truth;    and   it   is    his 

(1849):       Bell,    J.:     "A    man's    acts,    con-  fault  if  they  do  not." 
duct,  and  declarations  wherever  made,  pro- 


136  TESTIMONIAL  IMPEACHMENT.  No.  135. 

HEANE  V.  ROGERS  (1829). 

9  B.&  C.  577,  586. 

Bayley^  J.,  referring  to  an  admission  of  the  title  of  an  assignee  in 
bankruptcy :  "There  is  no  doubt  but  that  the  express  admissions  of  a 
party  to  the  suit,  or  admissions  impHed  from  his  conduct,  are 
^  evidence,  and  strong  evidence,  against  him.  But  v^^e  think  that 
he  is  at  liberty  to  prove  that  such  admissions  were  mistaken  or  were 
untrue,  and  is  not  estopped  or  concluded  by  them,  unless  another  person 
has  been  induced  by  them  to  alter  his  condition ;  in  such  a  case  the  party 
is  estopped  from  disputing  their  truth  with  respect  to  that  person  (and 
those  claiming  under  him)  and  that  transaction;  but  as  to  third  persons 
he  is  not  bound." 


CORSER  V.  PAUL  (i860). 

31  N.  H.  24,  31. 

Bell,  C.  J. :  "There  is  a  class  of  admissions  which  may  be  either 
express  or  implied  from  silence,  or  acquiescence,  which  are  conclusive. 
Such  are  admissions  which  have  been  acted  upon,  or  those  which 
^  have  been  made  to  influence  the  conduct  of  others,  or  to  derive 

some  advantage  to  the  party,  and  which,  therefore,  cannot  be  denied 
without  a  breach  of  good  faith.  As  if,  for  example,  in  the  present  case, 
the  defendant  had  stood  by  and  seen  this  note  offered  to  the  bank  for 
discount;  and,  being  aware  of  what  was  doing,  had  been  silent;  or  if, 
before  the  discount  he  had  been  spoken  to  by  any  of  the  officers  of  the 
bank  in  relation  to  the  note,  and,  being  aware  of  the  facts,  had  forborne 
to  deny  the  signature — by  these  tacit  admissions  he  would  be  forever 
concluded  to  deny  the  note  to  be  his,  in  case  the  bank  discounted  it. 
This  is  but  an  application  of  the  same  principle  that  is  applied  in  the 
case  of  deeds  of  real  estate,  that  he  who  stands  by,  at  the  sale  of  his 
property  by  another  person,  without  objecting,  will  be  precluded  from 
contesting  the  purchaser's  title." 


COLLINS  v.  MACK  (1877). 

31  Ark.  684. 

Breach  of  promise  of  marriage.  The  plaintiff  had  been  delivered  of 
a  child,  of  which  the  defendant  was  the  father.  Verdict  for  the  plain- 
tiff. English,  C.  J. :  "Appellant  called  as  a  witness  Dr.  Joshua 
Henly,  who  testified  that  he  was  a  practicing  physician,  and  was 
called  to  attend  appellee  in  her  confinement  at  the  time  she  was  delivered 
of  the  child  spoken  of  by  her  in  her  testimony.  Appellant  offered  to 
prove  by  this  witness  that  during  said  visit  and  attendance,  and  about 
six  hours  after  she  was  delivered  of  her  child,  appellee  told  witness  that 


No..  138.  party's  admissions.  137 

she  and  appellant  never  had  been  engaged,  and  that  he  never  had  prom- 
ised to  marry  her.  Upon  the  objection  of  appellee,  the  Court  excluded 
this  evidence,  but  upon  what  ground,  does  not  appear  in  the  transcript. 
Not,  surely,  on  the  ground  that  the  admission  was  a  confidential  com- 
munication to  the  witness,  necessary  to  enable  him  to  prescribe  for  ap- 
pellee as  a  physician,  or  to  do  any  act  for  her  as  a  surgeon,  (Gantt's 
Digest,  sec.  2485,)  for  her  statement  to  him  was  not  of  that  character. 
Nor  do  we  think  that  the  admission  could  properly  have  been  excluded 
on  the  ground  that  appellee  had  not,  while  on  the  stand  as  a  witness, 
been  asked  if  she  had  made  such  admission.  She  sustained  two  rela- 
tions to  the  suit :  First,  as  plaintiff ;  second,  as  a  witness  in  her  own 
behalf.  By  becoming  a  witness,  she  did  not  lose  her  character  as 
plaintiff.  The  acts  and  declarations  of  a  party  to  a  suit,  when  they 
afford  any  presumption  against  him,  may  be  proven  by  the  opposing 
party.  Appellee  has  stated,  on  her  examination,  that  appellant  had 
promised  to  marry  her.  Had  she  been  a  witness  in  the  cause  only, 
and  not  a  party,  appellant  could  not  have  discredited  her,  by  proving 
that  she  had  made  a  contrary  statement  on  some  former  occasion,  with- 
out first  interrogating  her  as  to  such  former  statement.  By  making  her- 
self a  witness  in  her  own  behalf,  appellee  could  not  cut  off,  or  impair, 
the  full  right  of  the  appellant  to  prove  her  admissions  or  declarations  as 
a  party.  Had  the  proposed  evidence  of  her  admission  been  admitted,  she 
could  have  been  recalled  and  examined  by  her  counsel  in  regard  to  it."* 


FRANKLIN  BANK  v.  PENNSYLVANIA  D.  &  M.  S.  N.  Co.  (1839). 

II  G.  &  J.  28,  33. 

In  an  action  for  the  loss  of  a  package  sent  by  the  plaintiff  through 

the  defendant,  the  cashier,  Mitchell,  of  the  bank  to  which  the  package 

was   consigned  testified :   that  he   was   absent   from   Philadelphia 
1 00 
^^^       from  about  the   loth  until  the  27th  of  November,   1834;  that  on 

his  return  he  found  two  letters  at  the  Mechanics'   Bank,  addressed  to 

him  from  the  cashier  of  the  plaintiffs ;  the  first  of  the  17th  of  November, 

1834,   advising   him   of  the   forwarding   of   the   package  by  the   steam 

boat  line  of  the  defendant,  which  had  been  received  at  the  bank,  and 

opened  in  his  absence,  which  it  was  the  duty  of  the  president  to  do; 

and  the  second  of  the  21st  of  the  same  month,  requesting  him  to  make 

inquiry  at  the  office  of  the  steam  boat  line,  by  which  the  package  had 

been  forwarded ;  that  within  a  day  or  two  after  his  return,  he  applied 

at  the  office,  to  Davidson  the  agent  of  the  defendants,  for  the  package, 

and  thinks  he  showed  him  the  letter  from  the  cashier  of  the  plaintiffs 

of  the  2ist  of  November  1834,  who  told  him.  that  on  the  evening  of 

the  i8th  of  November  1834,  there  were  a  number  of  persons  in  the  office, 

when  the  trunk  was  opened  by  the  clerk,  and  the  packages  handed  out 

9 — Compare   the   authorities   cited   in    W.,  ?  1051. 


138  TESTIMONIAL  IMPEACHMENT.  No.  135. 

by  the  porter  to  the  clerk;  that  there  was  a  package  addressed  to 
Mr.  Mitchell ;  but  whether  to  Mr.  Mitchell  the  witness,  or  to  a  dry 
goods  merchant  of  that  name,  he  did  not  know,  nor  did  he  know  that 
it  contained  bank  notes ;  and  that  the  package  was  thrown  upon  the 
desk,  and  which  was  the  last  that  he,  Davidson,  knew  of  it. 

Buchanan,  J.:  "The  evidence  offered  in  this  case  and  rejected  by 
the  court  below,  is  of  a  conversation  alleged  to  have  taken  place  between 
Davidson,  the  agent  of  the  defendants,  and  the  witness,  some  eight  or 
ten  days  after  the  transaction  to  which  it  relates,  and  after  the  loss  of 
the  package  in  question,  when  the  agency  for  the  delivery  of  it  to  the 
person  to  whom  it  was  addressed  had  ceased,  not  constituting  a  part  of 
the  transaction,  but  a  subsequent  account  only  of  what  had  before 
occurred  respecting  it.  It  cannot  therefore  be  treated  as  a  statement  or 
admission  by  the  defendants,  and  as  such  binding  upon  them,  and  admis- 
sible in  evidence ;  but  must  be  considered  as  a  mere  narrative  of  facts  by 
Davidson,  of  his  own  authority,  to  be  proved  by  him  on  oath,  if  within 
his  own  knowledge,  or  by  some  other  witness,  and  not  by  evidence  of  his 
statement  of  them,  which  is  forbidden  by  the  general  rule  of  law  in  rela- 
tion to  hearsay  evidence.  The  principle  upon  which  the  declarations  or 
representations  of  an  agent,  within  the  scope  of  his  authority,  are  per- 
mitted to  be  proved,  is,  that  such  declarations,  as  well  as  his  acts,  are 
considered  and  treated  as  the  declarations  of  his  principal.  What  is  so 
done  by  an  agent,  is  done  by  the  principal  through  him,  as  his  mere  instru- 
ment. So  whatever  is  said  by  an  agent,  either  in  the  making  a  contract  , 
for  his  principal,  or  at  the  time,  and  accompanying  the  performance  of 
any  act,  within  the  scope  of  his  authority,  having  relation  to,  and  con- 
nected with,  and  in  the  course  of  the  particular  contract  or  transaction  in 
which  he  is  then  engaged,  is,  in  legal  effect,  said  by  his  principal,  and 
admissible  in  evidence;  not  merely  because  it  is  the  declaration  or  admis- 
sion of  an  agent;  but  on  the  ground,  that  being  made  at  the  time  of  and 
accompanying  the  contract  or  transaction,  it  is  treated  as  the  declaration 
or  admission  of  the  principal,  constituting  a  part  of  the  res  gestce,  a  part 
of  the  contract  or  transaction,  and  as  binding  upon  him  as  if  in  fact  made 
by  himself.  But  declarations  or  admissions  by  an  agent,  of  his  own  au- 
thority, and  not  accompanying  the  making  of  a  contract,  or  the  doing  of 
an  act,  in  behalf  of  his  principal,  nor  made  at  the  time  he  is  engaged  in 
the  transaction  to  which  they  refer,  are  not  binding  upon  his  principal 
not  being  part  of  the  res  gestce,  and  not  admissible  in  evidence,  but  come 
within  the  general  rule  of  law,  excluding  hearsay  evidence ;  being  but  an 
account  or  statement  by  an  agent  of  what  has  passed  or  been  done  or 
omitted  to  be  done, — not  a  part  of  the  transaction,  but  only  statements 
or  admissions  respecting  it."^** 

10 — Wilde,   C.  J.,  in   Watson  v.  King,   3  been   proved  to  have  held   the  premises  at 

C.    B.    608    (1846):      "The    attorney   is    not  a   certain   rent)    that    one   of   the   plaintiff's 

the   agent  of  the  client   for   the   purpose   of  witnesses   heard  the   plaintiff's  attorney  say 

making  admissions,  except  in  the  cause  and  that    there    was    an    agreement    in    writing, 

for    the    purpose    of    the    cause.      All    that  That  clearly  was  no  evidence  at  all  to  af- 

appeared   here    was    (the    defendant   having  feet  the  plaintiff." 


No.  139.  party's  admissions.  139 

GIBBLEHOUSE  v.  STOXG  (1832). 
3  Rawle  436,  445. 

Frederick  Stong,  the  defendant  in  error,  brought  an  ejectment 
against  the  plaintiffs  in  error,  John  Gibblehouse  and  John  Brandr, 
to  recover  two  lots  of  ground  in  Whitpain  township,  one  of  them 
■'■*"  containing  three-quarters  of  an  acre,  with  a  dwelling-house,  and 
other  buildings  erected  on  it,  a'nd  the  other  containing  five  acres.  The 
plaintiff  below  claimed  under  a  deed  dated  ist  of  April,  1813,  from  David 
Johnson,  in  whom  it  was  admitted  the  legal  title  to  both  the  lots  was 
vested,  one  of  them  by  deed  dated  the  ist  of  April,  1811,  from  S. 
Slingluff,  and  wife,  the  other  by  deed  dated  the  13th  of  May,  1811, 
from  Samuel  Ashmead  to  him.  Gibblehouse  was  the  tenant  of  Brandt, 
who  alleged  that  David  Johnson  was  the  mere  trustee  of  his  brother 
Edward  Johnson,  for  whose  use  he  held  the  legal  title  to  the  lots  in 
dispute,  and  that  he  Brandt,  had  purchased  them  as  the  property  of 
Edward  Johnson  at  a  sheriff's  sale  under  an  execution  upon  a  judg- 
ment obtained  by  Brandt  against  Edward  Johnson.  The  defend- 
ant's counsel  oft"ered  to  prove  declarations  made  by  David  Johnson, 
after  the  purchase  from  Slingluff  and  Ashmead,  and  before  the  sale  of 
the  property  to  any  person,  that  he,  David  Johnson,  never  paid  any 
part  of  the  purchase  money,  but  that  he  held  the  title  as  trustee  for 
Edward  Johnson,  and  that  Edward  Johnson  had  paid  the  purchase- 
money  for  it.  The  court  decided  that  the  witness  could  not  give  any 
evidence  of  any  declarations  made  by  David  Johnson,  unless  such  dec- 
larations were  made  at  the  time,  or  immediately  before,  or  immediately 
after  the  execution  of  the  deeds  to  him,  or  by  him  to  the  plaintiff,  or 
in  the  presence  of  the  opposite  party ;  David  Johnson  being  a  compe- 
tent witness,  and  from  anything  which  appears  to  the  contrary,  in  full 
life,  and  within  reach  of  the  process  of  the  court. 

Kennedy,  J.:  *Tn  the  case  before  us  the  testimony  offered  and 
rejected  was  not  of  that  character  which  in  a  technical  and  legal  sense 
comes  under  the  denomination  of  hearsay.  It  comes  under  what  is 
considered  the  declarations  or  admissions  of  the  party  to  the  suit  or 
his  privies,  that  is,  those  under  whom  he  claims ;  in  respect  to  which 
the  general  rule  of  law  is  just  as  well  settled  that  they  shall  be  received 
in  evidence  as  that  hearsay  shall  not.  All  a  man's  own  declarations 
and  acts,  and  also  the  declarations  and  acts  of  others  to  which  he  is 
privy,  are  evidence,  so  far  as  they  afford  any  presumption  against  him, 
whether  such  declarations  amount  to  an  admission  of  any  fact,  or  such 
acts  and  declarations  of  others  to  which  he  is  privy  afford  any  pre- 
sumption or  inference  against  him.  .  .  .  The  confessions  of  the  party 
himself  (which  I  do  not  understand  to  be  denied)  have  always  been 
considered  good  and  admissible  evidence  of  any  fact  admitted  by  them 
to  be  true,  and  may  be  given  in  evidence  to  prove  it,  notwithstanding 


140  TESTIMONIAL   IMPEACHMENT.  No.  139. 

the  confessions  might  be  such  as  to  show  that  twenty  witnesses  were 
present  who  could  all  testify  to  its  existence  or  non-existence,  and  who 
might  all  appear  to  be  in  the  court-house  at  the  time  when  such  con- 
fessions should  happen  to  be  offered  in  evidence  against  the  party  making 
them.  And  this  rule  of  admitting  the  confessions  or  declarations  of 
the  party  extends  not  only  to  the  admission  of  them  against  himself, 
but  against  all  who  claim  or  derive  their  title  from  him ;  in  other  words, 
between  whom  and  himself  there  is  a  privity.  There  are  four  species 
of  privity:  privity  in  blood,  as  between  heir  and  ancestor;  privity  in 
representation,  as  between  testator  and  executor,  or  the  intestate  and 
his  administrators;  privity  in  law,  as  between  the  commonwealth  by 
escheat  and  the  person  dying  last  seised  without  blood  or  privity  of 
estate ;  and  privity  in  estate  as  between  the  donor  and  the  donee,  lessor 
and  the  lessee,  vendor  and  the  vendee,  assignor  and  the  assignee,  etc. 
.  .  .  Upon  this  same  principle  it  is,  that  executors  and  administrators, 
as  also  devisees,  legatees,  heirs  and  next  of  kin,  are  all  bound  by  the 
promises,  whether  written  or  verbal,  of  their  respective  testators  or 
intestates,  so,  far  as  they  may  have  received  estates  from  them  that  are 
liable,  and  the  declarations  and  admissions  of  such  testators  and  intes- 
tates are  uniformly  received  in  evidence  against  their  devisees,  legatees, 
heirs,  and  next  of  kin,  so  as  to  affect  the  estates  which  have  passed  to 
them.  Privies  in  estates,  such  as  vendee  and  vendor,  assignee  and 
assignor,  stand  upon  the  same  footing  in  this  respect  to  each  other  that 
privies  in  blood  do.  I  know  of  no  distinction.  That  which  is  binding 
upon  the  vendor  will  generally  be  equally  so  upon  his  vendee ;  and 
whatever  would  have  been  admissible  as  evidence  against  the  former, 
ought  not  only  to  be  so  against  the  latter,  but  ought  to  have  the  same 
effect  too."^i 


CUYLER  v.  McCartney  (1869). 

40  N.  Y.  221,  22/. 

The  action  was  brought  by  the  plaintiff,  as  assignee  of  William 
T.  Cuyler,  to  recover  for  the  alleged  conversion  of  certain  personal 
property,  included  in  the  assignment,  but  seized  by  the  defendant, 
^^^  McCartney,  sheriff  of  the  county  of  Livingston,  under  executions 
in  his  hands,  issued  upon  certain  judgments  recovered  by  the  other 
defendants  against  the  assignor.  William  T.  Cuyler,  about  the 
31st  of  August,  1857,  conveyed  to  George  W.  Cuyler  and  William  B. 
Wooster,  the  original  plaintiff's,  all  his  real  and  personal  property,  in 
trust  for  his  creditors,  giving  certain  preferences.  The  assignees  took, 
or  claimed  to  have  taken,  possession  of  the  assigned  property  on  the 
same  day.  In  October  following,  the  defendant,  McCartney,  then 
sheriff   of   Livingston   county,   levied   on   about   $45,000   worth   of  the 

II — Compare  the  authorities  cited  in  W.,  §§  1080-1085. 


No.  140.  party's  admissions.  141 

assigned  property,  to  satisfy  certain  executions  then  in  his  hands.  This 
levy  the  plaintiff  insists  was  a  wrongful  taking;  and  the  defendants 
justify,  alleging  that  the  assignment  was  fraudulent  and  void,  as  made 
with  intent  to  hinder,  delay,  and  defraud  the  creditors  of  William  T. 
Cuyler,  the  assignor.  Upon  the  trial  numerous  exceptions  were 
taken  by  the  plaintiff  to  the  admission  of  evidence  offered  by  the 
defendants,  especially  of  declarations  and  acts  of  the  assignor,  subsequent 
to  the  assignment. 

Woodruff,  J. :  "I  concur  fully  in  the  proposition  that  after  the  exe- 
cution and  delivery  of  an  assignment  for  the  benefit  of  creditors,  and 
the  entry  of  the  trustees  upon  the  performance  of  a  trust,  by  taking 
possession  of  the  assigned  property,  the  assignor  cannot,  by  his  declara- 
tions or  admissions,  out  of  court,  invalidate  the  assignment  or  furnish 
evidence  of  his  own  or  the  trustees'  fraudulent  intent  in  making  or 
receiving  it,  for  the  purpose  of  defeating  the  claim  of  the  trustees  to 
hold  and  administer  the  property  according  to  the  trust.  .  .  .  [The 
admissibility  of  these  declarations  is  insisted  upon  for  the  reason]  that 
other  evidence  showed  that  the  assignor  and  assignees  were  combined 
in  a  conspiracy  to  defraud  the  creditors  of  William  T.  Cuyler,  and 
therefore  the  acts  and  declarations  of  either  conspirator,  while  carrying 
the  common  intent  into  execution,  and  in  furtherance  thereof,  are  com- 
petent evidence  to  affect  all  the  co-conspirators.  This  rule  is  not  ques- 
tioned. .  .  .  [But]  it  is  not  and  cannot  be  successfully  claimed  that  mere 
proof  that  assignor  and  assignee  have  concurred  in  an  assignment  pro- 
viding for  the  payment  of  debts,  establishes  a  conspiracy  within  the  rule. 
Delivering  and  accepting  such  an  assignment  establishes  a  common  intent, 
but  not  a  common  intent  to  defraud.  If  mere  proof  of  concurrence  in  the 
execution  and  delivery  of  the  assignment  established  a  common  intent 
within  the  principle  making  the  acts  and  declarations  of  the  conspira- 
tors, while  carrying  their  common  design  into  execution,  evidence  against 
each  other,  then  the  rule  first  above  stated  [i.  c.  that  declarations  after 
transfer  of  title  are  inadmissible]  is  made  a  nullity.  No  sooner  is  an 
assignment  made  than  the  assignor  may,  by  his  acts  or  declarations  out 
of  court,  defeat  it,  if  he  be  dishonest  enough  to  collude  with  any  creditor, 
or  to  resent  any  dissatisfaction  with  the  trustees,  and  defeat  it  by  such 
means.  To  make  such  admissions  or  declarations  competent  evidence, 
it  must  stand  as  a  fact  in  the  cause,  admitted  or  proved,  that  the  assignor 
and  assignees  were  in  conspiracy  to  defraud  the  creditors.  If  that 
fact  exist,  then  the  acts  and  declarations  of  either,  made  in  execution 
of  the  common  purpose,  and  in  aid  of  its  fulfilment,  are  competent 
against  either  of  them.  The  principle  of  its  admissibility  assumes  that 
fact.  It  necessarily  follows  that  those  declarations  or  admissions  cannot 
be  received  to  prove  the  fact  itself."^- 

12— Compare  the  authorities  cited  in  W.,        tion  of  transfer  under  the  Verbal  Act  rule, 
§  io86.  see   post.    No.    363. 

For    the    admissibility    of    such    declara- 


142  TESTIMONIAL   IMPEACHMENT.  No.  141. 


COMMONWEALTH  v.  KENNEY   (1847). 
12  Mete.  235. 

Larceny  of  a  bag  of  money.  John  S.  Brewer  was  called  by  the 
attorney  for  the  commonwealth,  and  testified  that  he  was  in  one  of 
the  watch  houses,  in  Boston,  between  eleven  and  twelve  o'clock  in 
^  the  evening  of  September  5th,  1846,  and  that  while  he  was  there  two 

of  the  watchmen  of  the  city,  having  the  defendant  in  custody,  came  in ; 
that  one  of  the  watchmen  said,  "here  is  a  man  that  has  been  robbing 
a  man ;"  that  presently  Russell,  the  person  named  in  the  indictment 
as  having  been  robbed,  came  in  crying,  and  said,  "that  man"  pointing 
to  the  defendant,  "has  stolen  my  money;"  .  .  .  that  the  witness  .  .  . 
saw  a  bag,  which  he  took  up,  and  thereupon  said,  "here  is  the  bag;" 
the  defendant  then  being  on  the  stairs,  going  down  cellar,  and  within 
hearing;  that  Russell  immediately  said,  "that  is  my  bag;"  that  Baxter 
then  took  the  bag,  and  counted  the  money  in  it;  and  that  while  Baxter 
was  counting  the  money — the  defendant  then  standing  in  the  watch 
house — Russell  said,  "that  was  all  the  money  I  had  in  the  world ;" 
and  that  the  defendant  made  no  reply  to  any  of  the  aforesaid  declara- 
tions. 

Shaw,  C.  J. :  "The  admissibility  of  the  evidence  depends  on  the 
question  whether  the  statements  of  Russell  in  the  hearing  of  the  de- 
fendant, and  the  silence  of  the  latter,  do  amount  to  a  tacit  admission 
of  the  facts  stated.  It  depends  on  this:  If  a  statement  is  made  in  the 
hearing  of  another,  in  regard  to  facts  affecting  his  rights,  and  he 
makes  a  reply,  wholly  or  partially  admitting  their  truth,  then  the  dec- 
laration and  the  reply  are  both  admissible ;  the  reply,  because  it  is  the 
act  of  the  party,  who  will  not  be  presumed  to  admit  any  thing  affecting 
his  own  interest,  or  his  own  rights,  unless  compelled  to  it  by  the  force 
of  truth ;  and  the  declaration,  because  it  may  give  meaning  and  effect 
to  the  reply.  ...  In  some  cases,  where  a  similar  declaration  is  made 
in  one's  hearing,  and  he  makes  no  reply,  it  may  be  a  tacit  admission 
of  the  facts.  But  this  depends  on  two  facts :  first,  whether  he  hears 
and  understands  the  statement,  and  comprehends  its  bearing;  and 
secondly,  whether  the  truth  of  the  facts  embraced  in  the  statement  is 
within  his  own  knowledge,  or  not ;  whether  he  is  in  such  a  situation  that 
he  is  at  liberty  to  make  any  reply;  and  whether  the  statement  is  made 
under  such  circumstances,  and  by  such  persons,  as  naturally  to  call 
for  a  reply,  if  he  did  not  intend  to  admit  it.  If  made  in  the  course  of 
any  judicial  hearing,  he  could  not  interfere  and  deny  the  statement; 
it  would  be  to  charge  the  witness  with  perjury,  and  alike  inconsistent 
with  decorum  and  the  rules  of  law.  So,  if  the  matter  is  of  something  not 
within  his  knowledge;  if  the  statement  is  made  by  a  stranger,  whom 
he  is  not  called  on  to  notice:  or  if  he  is  restrained  by  fear,  by  doubts 
of  his  rights,  by  a  belief  that  his  security  will   be  best  promoted  by 


No.  142.  party's  admissions.  143 

his  silence;  then  no  inference  of  assent  can  be  drawn  from  that  silence, 
perhaps  it  is  within  the  province  of  the  judge,  who  must  consider  these 
preliminary  questions  in  the  first  instance  to  decide  ultimately  upon 
them.  .  .  .  The  circumstances  were  such,  that  the  court  are  of  opinion 
that  the  declaration  of  the  party  robbed,  to  which  the  defendant  made 
no  reply,  ought  not  to  have  been  received  as  competent  evidence  of 
his  admission,  either  of  the  fact  of  stealing,  or  that  the  bag  and  money 
were  the  property  of  the  party  alleged  to  be  robbed.  The  declaration 
made  by  the  officer,  who  first  brought  the  defendant  to  the  watch  house, 
he  had  certainly  no  occasion  to  reply  to.  The  subsequent  statement, 
if  made  in  the  hearing  of  the  defendant  (of  which  we  think  there  was 
evidence,)  was  made  whilst  he  was  under  arrest,  and  in  the  custody 
of  persons  having  official  authority.  They  were  made,  by  an  excited, 
complaining  party,  to  such  officers,  who  were  just  putting  him  into 
confinement.  If  not  strictly  an  official  complaint  to  officers  of  the 
law,  it  was  a  proceeding  very  similar  to  it,  and  he  might  well  suppose 
that  he  had  no  right  to  say  any  thing  until  regularly  called  upon  to 
answer. "^3 


JOHN  HORNE  TOOKE'S  TRIAL    (1794). 

25  Hoiv.  St.  Tr.  I,  120. 

Treason ;  a  certain  paper,  addressed  to  Mr.  Tooke  and  found  at 
his  house,  was  offered  against  him;  Mr.  Tooke  "I  do  not  know  what 
papers  may  have  been  taken  from  my  house;  but  are  letters 
*"  written  to  me  to  be  produced  as  evidence  against  me?"  L.  C.  J. 
Eyre:  "Being  found  in  your  possession,  they  undoubtedly  are  pro- 
ducible as  evidence ;  but,  as  to  the  effect  of  them,  very  much  will 
depend  upon  the  circumstances  of  the  contents  of  those  letters,  and 
whether  answers  to  them  can  be  traced,  or  whether  anything  has  been 
done  upon  them.  A  great  number  of  papers  may  be  found  in  a  man's 
possession  which  will  be,  prima  facie,  evidence  against  him,  but  will 
be  open  to  a  variety  of  explanations ;  and  it  is  always  a  very  consider- 
able explanation  that  nothing  appears  to  have  been  done  in  conse- 
quence of  the  paper  being  sent  to  him.  But  all  papers  found  in  the 
possession  of  a  man  are,  prima  facie,  evidence  against  him,  if  the  con- 
tents of  them  have  application  to  the  subject  under  consideration." 
Mr.  Tooke:  "The  reason  of  my  asking  it  is,  I  am  very  much  afraid 
that,  besides  treason,  I  may  be  charged  with  blasphemy."  L.  C.  J. 
Evre:  "You  are  not  tried  for  that."  Mr.  Tooke:  "It  is  notorious  I 
do  not  answer  common  letters  of  civility,  but  I  have  received  and  kept 
many  curious  letters.  I  received  some  letters  from  a  man  whose  name 
is  Oliver  Verall,  and  he  endeavoured  to  prove  to  me  that  he  was  God 
the  Father,  Son,  and  Holy  Ghost.  He  proved  it  from  the  Old  Testa- 
ment ;  in  the  first  place  he  was  God  the  Father,  because  God  is  0  Veral; 

13 — Compare  the  authorities  cited  in  \V..  §  1072. 


144  TESTIMONIAL   IMPEACHMENT.  No.  142. 

that  is,  God  over  all.  He  proved  he  was  God  the  Son,  from  the  New 
Testament — verily,  verily  I  am  he;  that  is  Veral  I,  Veral  I,  I  am  he. 
Now,  if  these  letters,  written  to  me,  which  I,  from  curiosity,  have  pre- 
served, but  upon  which  I  have  taken  no  step,  and  to  which  I  have  given 
no  answer,  are  produced  against  me,  I  do  not  know  what  may  become 
of  me."  L.  C.  J.  Eyre:  "If  you  can  treat  all  the  letters  that  have  been 
found  upon  you  with  as  much  success  as  you  have  these  letters  of  your 
correspondent,  you  will  have  no  great  reason  for  apprehension,  even 
if  that  letter  should  be  brought  against  you."^* 


FAIRLIE  V.  DENTON    (1828). 
S  C.  &  P.  10;^. 

Money  had  and  received.     Plea  —  General  issue.     The  plaintiff  had 

sent  a  letter  to  the  defendants,  demanding  a  sum  of  money  as  due  to 

him.     But  no  answer  had  been  returned  by  the  defendants.    The 

plaintiff's  counsel  called  for  the  letter  under  a  notice  to  produce, 

with  a  view  to  reading  it  in  evidence,  as  a  part  of  their  case. 

Scarlett,  A.  G.,  for  the  defendants,  objected,  that  "  an  unanswered 
letter,  written  by  the  plaintiff,  was  not  evidence  in  his  own  favour ;  for 
otherwise  a  party  would  only  have  to  write  a  letter  to  make  evidence 
for  himself."  K  Pollock,  contra:  "Certain  things  are  stated  in  this  let- 
ter, which  the  defendants  might  deny  by  answering  it ;  and  I  submit  that 
it  is  evidence,  exactly  the  same  as  what  is  said  verbally  in  the  presence 
of  a  defendant  is  evidence  against  him,  though  he  may  make  no  answer." 
L.  C.  J.  Tenterden  :  "I  am  slow  to  admit  that.  What  is  said  to  a  man 
before  his  face  he  is  in  some  degree  called  on  to  contradict,  if  he  does 
not  acquiesce  in  it.  But  the  not  answeritig  a  letter  is  quite  different ;  and 
it  is  too  much  to  say  that  a  man,  by  omitting  to  answer  a  letter, 
at  all  events  admits  the  truth  of  the  statements  that  letter  con- 
tains. .  .  .  You  may  have  that  single  line  read^  in  which  the  plaintiff 
makes  a  demand  of  a  certain  amount,  but  not  any  other  part  which  states 
any  supposed  fact  or  facts. "^* 


HARTFORD  BRIDGE  CO.  V.  GRANGER  (1822). 

4  Conn.  142,  148. 

Action   on    a   covenant  to  build   a   drawbridge   according  to  plans. 

The  plaintiffs  offered  to  prove  by  James  R.  Woodbridge,  that  long  after 

the   first  of   March,    1819,   the  defendant   Granger  came  to  his, 

Woodbridge's  store,  where  he  met  with  Ward  Woodbridge,  one 

of  the  directors  of  the  company,  who  complained  to  Granger,  that  the 

draw  was  not  such  as  it  ought  to  be;  to  which  Granger  replied,  that  he 

14 — Compare  the  authorities  cited  in  W.,   §  1073. 


No.  145.  party's  admissions.  145 

knew  it  was  not  such  an  one  as  they  wanted,  and  that  if  the  directors 
would  furnish  him  with  a  plan,  he  would  conform  the  draw  to  such  plan, 
but  that  he  could  not  make  it  conformable  to  the  plan  of  Eli  Whitney, 
because  it  would  cost  too  much.  The  defendant's  counsel,  for  the  pur- 
pose of  raising  an  objection  to  this  evidence,  asked  James  R.  Wood- 
bridge,  if  such  conversation  was  not  had  with  a  view  to  a  compromise ; 
to  which  the  witness  answered,  that  in  the  conversation.  Granger  asked 
Ward  Woodbridge  how  much  money  he  would  accept,  and  discharge  him 
from  doing  anything  more  to  the  draw.  The  defendants  then  urged  their 
objections  to  the  evidence  offered  by  the  plaintiffs;  and  the  judge  rejected 
it.  HosMER,  C.  J.:  *'The  law  on  this  subject  has  often  been  miscon- 
ceived ;  and  it  is  time  that  it  should  be  firmly  established.  It  is  never  the 
intendment  of  the  law  to  shut  out  the  truth;  but  to  repel  any  inference 
which  may  arise  from  a  proposition  made,  not  with  design  to  admit  the 
existence  of  a  fact,  but  merely  to  buy  one's  peace.  If  an  admission, 
however,  is  made,  because  it  is  a  fact,  the  evidence  to  prove  it  is  com- 
petent, whatever  motive  may  have  prompted  to  the  declaration.  In  illus- 
tration of  this  remark,  it  may  be  observed,  that  if  A.  offer  to  B.  ten  pounds, 
in  satisfaction  of  his  claim  of  an  hundred  pounds,  merely  to  prevent  a 
suit,  or  purchase  tranquillity;  this  implies  no  admission  that  any  sum 
is  due;  and  therefore,  testimony  to  prove  the  fact  must  be  rejected, 
because  it  evinces  nothing  concerning  the  merits  of  the  controversy. 
But  if  A.  admit  a  particular  item  in  an  account,  or  any  other  fact,  mean- 
ing to  make  the  admission  as  being  true,  this  is  good  evidence,  although 
the  object  of  the  conversation  was  to  compromise  an  existing  contro- 
versy. The  question  to  be  considered  is,  what  was  the  view  and  intention 
of  the  party  in  making  the  admission;  whether  it  was  to  concede  a  fact 
hypothetically,  in  order  to  effect  a  settlement,  or  to  declare  a  fact  really 
to  exist.  There  is  no  point  of  honour  guarded  by  the  Court,  nor  exclu- 
sion of  evidence,  lest  it  should  deter  from  a  free  conversation.  But  tes- 
timony of  admissions  or  declarations  taking  facts  for  granted,  not  because 
they  are  true,  but  because  good  policy  constrains  the  temporary  yielding 
of  them  to  effectuate  a  greater  good,  is  not  admissible;  truth  being  the 
object  of  evidence. "^^ 


CRAIG  dem.  ANNESLEY  v.  EARL  OF  ANGLESEA    (1743). 

1/  How.  St.  Tr.  121J. 

In  this  celebrated  case  the  plaintiff  claimed  to  be  the  legitimate  son 
of  the  defendant's  brother,  and  the  true  heir  to  the  estates  and  peerage. 
He  showed  that  at  the  age  of  fourteen  he  had  been  kidnapped  by 
**  the  defendant's  procurement  and  transported  to  Pennsylvania,  and 
after  fifteen  years'  slavery  had  escaped  back  to  England  and  instituted 
a  suit  to  obtain  his  rights ;  while  on  the  way  to  begin  proceedings,  he 
joined  the  gamekeeper  of  a  friend  in  catching  some  poachers,  and  one  of 

IS — Compare  the  authorities  cited  in  W.,  §  1062. 


146  TESTIMONIAL  IMPEACHMENT.  No.  145. 

them  was  killed  by  a  shot  from  his  gun,  which  he  claimed  went  off  acci- 
dentally ;  he  had  been  tried  for  murder  and  acquitted.  He  now  proposed 
to  show  "that  the  relations  of  the  deceased,  being  convinced  that  the 
killing  was  only  accidental,  had  intended  a  very  slight  prosecution,  but 
that  the  defendant,  who  was  in  no  way  related  to  or  acquainted  with  the 
person  killed,  employed  a  solicitor  and  carried  on  a  severe  prosecution 
against  Mr.  Annesley  at  a  very  great  expense,  and  declared  'he  would 
spend  f  10,000  to  get  him  hanged'  ",  the  purpose  of  this  evidence  was  to 
"strengthen  that  evidence  of  the  defendant's  spiriting  away  the  lessor  of 
the  plaintiff,  and  show  the  defendant's  continued  design  of  removing  this 
gentleman  from  any  possibility  of  asserting  his  birthright." 

MouNTENEY,  B. :  "The  foundation  of  my  opinion  is  this :  Every  act 
done  by  the  defendant,  which  hath  a  tendency  to  show  a  consciousness  in 
him  of  title  in  the  lessor  of  the  plaintiff,  must  I  think  be  admitted,  beyond 
all  controversy,  to  be  pertinent  and  legal  evidence  in  the  present  cause. 
I  think  that  the  evidence  now  offered  hath  that  tendency,  and  conse- 
quently is  proper  to  be  admitted.  This  evidence  of  the  prosecution,  in 
my  apprehension,  stands  exactly  on  the  same  footing  with  the  evidence 
of  the  kidnapping,  .  .  .  for  I  can  by  no  means  enter  into  the  distinction 
of  lawful  and  unlawful  acts,  which  seems  to  have  so  much  weight  with, 
my  lord  chief  baron.  That  unlawful  act  was  not  therefore,  in  my  appre- 
hension, to  be  admitted  in  evidence  because  unlawful,  but  because  it  had 
a  tendency  to  show  such  a  consciousness  as  I  have  mentioned  in  the 
defendant;  and  if  the  carrying  on  the  prosecution  (which  must  be  ad- 
mitted to  be  a  very  extraordinary,  though  lawful,  act  of  the  defendant) 
hath  the  same  tendency,  it  ought  upon  the  same  principle  to  be  admitted." 

BowES^  C.  B.  (charging  the  jury)  :  "You  will  also  consider  whether 
these  acts  are  not  evidence  to  satisfy  you  that  the  defendant,  in  his  own 
thoughts  and  way  of  reasoning,  considered  the  staying  of  the  boy  here 
as  what  might  some  way  prejudice  his  title.  But  whether,  as  insisted 
upon  by  the  plaintiff's  counsel,  you  ought  to  take  this  as  an  admission  on 
the  part  of  the  defendant  that  the  plaintiff  was  the  lawful  son  of  Lord 
Altham  [earl  of  Anglesea],  will  deserve  further  consideration.  Un- 
doubtedly there  is  a  violent  presumption,  because  no  man  is  supposed  to 
be  wicked  without  design,  and  the  design  in  this  act  must  be  some  way 
or  other  relative  to  the  title ;  but  whether  or  no  it  was  the  opinion  of  the 
trouble  he  might  have  from  this  lad  that  induced  him  to  do  the  act,  or  a 
consciousness  that  the  lad  was  the  son  of  Lord  Altham,  must  be  left  to 
your  determination."^^ 

i6 — Shaw,    C.  J.,  in  Com.  v.   Webster,   5  ness   of  guilt,   and,   when   proved,   to  exert 

Cush.     295,   376    (1850):       "To    the    same  an     influence    against     the     accused.       But 

head   may  be  referred  all  attempts   on  the  this  consideration  is  not  to  be  pressed  too 

part   of   the   accused   to   suppress   evidence,  urgently;   because   an   innocent   man,   when 

to    suggest     false    and    deceptive    explana-  placed  by  circumstances   in   a  condition   of 

tions,    and    to    cast    suspicion    without    just  suspicion  and  danger,  may  resort  to  decep- 

cause    on    other    persons, — all    or    any    of  tion   in   the  hope  of  avoiding  the   force  of 

which    tend   somewhat    to   prove   conscious-  such   proofs." 


No.  147.  party's  admissions.  147 

STARR  V.  UNITED  STATES  (1897). 
164  U.  S.  62^,  77  Sup.  224. 
ALBERTY  v.  UNITED  STATES  (1896). 
162  U.  S.  499,  16  Sup.  864. 
Parker,  J.,  in  the  Federal  District  Court  for  Western  Arkansas, 
charging  the  jury:  "The  law  says  that  a  man  is  to  be  judged  by  his 
consciousness  of  the  right  or  wrong  of  what  he  does,  to  some 
■^*"  extent.  If  he  flees  from  justice  because  of  that  act,  if  he  goes 
to  a  distant  country,  and  is  living  under  an  assumed  name  because  of 
that  fact,  the  law  says  that  is  not  in  harmony  with  what  innocent  men 
do,  and  jurors  have  a  right  to  consider  it  as  an  evidence  of  guilt,  because 
he  is  an  eyewitness  to  the  occurrence,  he  knows  how  it  did  transpire, 
he  is  presumed  to  have  a  consciousness  of  that  act.  ...  It  is  a  principle 
of  human  nature — and  every  man  is  conscious  of  it,  I  apprehend — that, 
if  he  does  an  act  which  he  is  conscious  is  wrong,  his  conduct  will  be 
along  a  certain  line.  He  will  pursue  a  certain  course,  not  in  harmony 
with  the  conduct  of  a  man  who  is  conscious  that  he  has  done  an  act 
which  is  innocent,  right,  and  proper.  The  truth  is — and  it  is  an  old 
scriptural  adage — 'that  the  wicked  flee  when  no  man  pursueth,  but  the 
righteous  are  as  bold  as  a  lion.'  Men  who  are  conscious  of  right  have 
nothing  to  fear.  They  do  not  hesitate  to  confront  a  jury  of  their  coun- 
try, because  that  jury  will  protect  them.  It  will  shield  them,  and  the 
more  light  there  is  let  in  upon  their  case  the  better  it  is  for  them.  We 
are  all  conscious  of  that  condition,  and  it  is  therefore  a  proposition  of 
the  law  that,  when  a  man  flees,  the  fact  that  he  does  so  may  be  taken 
against  him,  provided  he  does  not  explain  it  away  upon  some  other  theory 
than  that  of  his  flight  because  of  his  guilt. "^^ 


ARMORY  v.  DELAMIRIE  (1722). 

I  Strange  505. 

A  chimney-sweeper's  boy,  finding  a  jewel,  took  it  to  the  defendant, 
a  jeweler,  for  appraisal,  but  the  defendant  would  not  restore  it.  In  an 
action  of  trover,  in  proving  the  value,  "the  Chief  Justice  [Pr.\tt] 
directed  the  jury  that  unless  the  defendant  did  produce  the  jewel 
and  show  it  not  to  be  of  the  finest  water,  they  should  presume  the 
strongest  against  him,  and  make  the  value  of  the  best  jewels  the  meas- 
ure of  their  damages ;  which  thev  accordinglv  did."^^ 


M'REYNOLDS  V.  M'CORD  (1837). 
6  Watts  288,  2go. 
Ejectment  for  the  undivided  half  of  250  acres  of  land.    It  appeared 
in  evidence  that  James  Dill  and  Matthew  Dill  were  the  owners  of  this 

17 — Compare  the  authorities  cited  in  W.,  i8 — Young     v.      Holmes,      i      Stra.      70 

§§273-284.  (1718);     Ejectment    for    a    leasehold:      "It 


148  TESTIMONIAL  IMPEACHMENT.  No.  148. 

land,  and  that  Matthew's  title  afterwards  became  vested  in  Tames. 
148 

The  plaintiffs  allege  that  the  title  to  the  land  was  in  dispute  some- 
time between  i8ii  and  1815,  when  an  agreement  in  writing  was  entered 
into  between  James  Dill  and  Daniel  Rees,  by  which  the  latter  was  to 
have  one-half  of  the  land  in  dispute  for  his  services  and  expenses  in 
carrying  on  the  lawsuit  for  the  land  to  conclusion,  in  case  it  should  be 
recovered.  This,  in  connection  with  proof  of  performance  by  Daniel 
Rees,  and  that  the  plaintiffs  were  his  heirs  at  law,  formed  the  founda- 
tion of  the  plaintiff's  claim  to  recover.  The  principal  question  in 
the  cause  in  this  court  arose  out  of  the  attempt  of  the  plaintiffs  to 
establish  the  written  agreement  referred  to.  The  plaintiff  called  a 
witness  who  said :  "There  was  an  agreement  between  James  Dill  and 
Daniel  Rees;  it  was  concerning  this  land,  the  'Buckhorn  Tract.'  My 
brother  (James  Dill)  burnt  the  agreement.  He  let  on  he  wanted  to 
see  some  of  the  papers,  and  he  got  them  and  destroyed  them,  and  said 
it  would  do  me  no  good,  and  no  matter  what  became  of  it.  He  then  burnt 
it.  I  never  read  that  paper ;  it  was  not  read  over  to  me.  This  was 
the  spring  after  my  husband's  death;  he  died  in  November,  1821." 
And  the  other  witness  testified:  "I  think  about  the  year  1817  or  1818, 
Daniel  Rees  came  to  Buckthorn  farm,  he  showed  me  what  he  said  was 
his  title  to  it;  it  was  a  paper  with  the  signature  of  James  Dill.  I  was 
not  acquainted  with  the  handwriting  of  James  Dill ;  never  saw  him  write. 
I  read  the  paper ;  it  purported  to  be  signed  by  James  Dill.  Daniel  Rees 
was  then  living  on  the  land  when  he  showed  me  the  paper:  he  told  me 
he  claimed  by  virtue  of  it ;  claimed  half."  The  plaintiff's  counsel  then 
proposed  to  ask  the  witness,  what  were  the  contents  of  the  paper?  The 
defendant's  counsel  objected  to  the  evidence,  on  the  ground  that  the 
execution  of  the  paper  had  not  been  proved.  The  Court  overruled  the 
objection. 

Gibson,  C.  J. :  "Preliminary  to  proof  of  contents  [of  a  lost  document], 
and  involving  proof  of  execution,  stands  proof  of  the  pre-existence  in 
the  state  of  a  valid  instrument.  This  is  a  rudimental  principle,  which  is 
not  contested.  Now  there  was  no  specific  proof  of  execution ;  and  what 
was  there  else?  Everything  is  to  be  presumed  in  odium  spoliatoris; 
and  had  it  certainly  appeared  that  the  destroyed  paper  purported  to  be 
an  agreement  such  as  is  attempted  to  be  established,  it  would  have  suf- 
ficed for  the  admission  of  subsequent  evidence  of  its  contents.  ...  It 

being  proved   the   defendant   had   the  lease  spoliated   are  what  they  have  been  alleged 

in    her    custody,    and    refusing    to    produce  to  be,    may   be   in  a   great   many   instances 

it,    an    attorney    who    had    read   it    was    al-  going  a  great  length." 

lowed  to  give  evidence  of  its  contents;  Best,  J.,  in  R.  v.  Burdett,  4  B.  &  Aid. 
and  the  C.  J.  [Parker]  said,  he  would  122  (1820):  "If  the  opposite  party  has 
intend  it  made  against  the  defendant,  it  it  in  his  power  to  rebut  it  by  evidence, 
being  in  her  power,  if  it  was  otherwise,  to  and  yet  offers  none,  then  we  have  some- 
show  the  contrary."  thing  like  an  admission  that  the  presump- 
Barker  v.  Ray,  2  Russ.  63,  73  (1826);  tion  is  just  .  .  .  The  law  does  not  im- 
Eldon,  L.  C. :  "To  say  that  if  you  once  pose  impossibilities  on  parties;  it  expects 
prove  spoliation,  you  will  take  it  for  that  a  man  who  has  the  means  of  knowing 
granted    that    the    contents    of    the    thing  who  may  be  witnesses  shall  call  them." 


No.  149.  CONFESSIONS.  149 

seems  clear  on  principle  that,  if  there  be  no  subscribing  witness,  the  act 
of  destruction  is  itself  the  best  evidence  of  which  such  a  case  is  sus- 
ceptible, because  it  has  put  it  out  of  the  party's  power  to  submit  the  paper 
to  witnesses  of  the  handwriting;  and  the  act  of  a  spoiler  is  in  is  nature 
equipollent  to  a  confession.  But,  before  he  can  be  fixed  with  the  charac- 
ter of  a  spoiler,  the  purport  of  the  paper  must  be  proved  to  have  been 
what  it  is  surmised  to  have  been;  .  .  .  there  are  few  men  who  have  not 
papers  which  it  would  be  not  only  innocent  but  prudent  to  destroy.  .  .  . 
If  the  paper  destroyed  were  shown  to  have  been  an  agreement  for  the 
land,  it  would  raise  a  presumption  of  identity,  sufficient  to  dispense  with 
the  ordinary  proof  of  execution,  and  let  in  the  contents  of  the  paper  [as 
proved  by  another  witness]  .  .  .  [But  the  witness  to  destruction  ap- 
peared not  to  have  read  the  paper  destroyed,  and  thus  to  be  unable  to 
identify  it.]  It  would  seem,  therefore,  that  the  plaintiffs,  in  making  out 
a  circumstance  to  stand  for  proof  of  execution,  ought  to  have  shown  a 
competent  degree  of  knowledge  [of  identity]  in  the  witness,  drawn  from 
the  declarations  of  him  who  destroyed  the  paper  or  from  some  other 
source  equally  satisfactory  if  such  there  were.  Had  that  been  done,  it 
would  have  produced  a  presumption  of  identity  and  consequent  execu- 
tion."i» 


Topic  VII  :     Confessions. 

STATE  v.  NOVAK  (1899). 

lop  la.  7/7,  7p  N.  W.  465. 

Murder ;  the  body  of  Edward  Murray,  the  deceased,  was  found  in  the 
ruins  of  the  defendant's  store,  after  it  was  burned  down.  Defendant, 
while  returning  in  custody  of  the  officer  who  had  arrested  him, 
to  the  place  of  the  homicide,  stated  to  the  officer  that  he  had  met 
with  financial  losses,  and  had  expected  to  go  the  day  after  a  fire  which 
destroyed  his  store  to  an  uncle  to  get  him  to  endorse  a  note  for  him ; 
that  his  safe  had  been  robbed ;  that,  to  prevent  further  robberies,  he  had, 
after  consulting  a  physician  as  to  how  much  morphine  in  a  bottle  of 
whisky  would  knock  out  a  person  without  killing  him,  prepared  a  bottle 
of  whisky,  and  placed  it  where  it  would  be  likely  to  be  seen  and  drunk 
by  a  robber  working  on  the  safe ;  that  Murray  came  into  his  store,  and 
in  his  absence  drank  from  the  bottle ;  that  defendant  on  his  return  dis- 
covered this,  and  that  Murray  was  in  a  stupor,  whereupon  he  took  him 
up  to  his  room  over  the  store,  and  put  him  in  his  bed ;  that  he  then  laid 
down  on  the  counter  in  the  store,  and  slept  until  he  awoke  in  the  night  to 
find  the  store  on  fire;  that  he  attempted  to  get  Murray  out,  but  that  the 
smoke  and  heat  prevented  his  doing  so ;  that  he  returned  to  the  store,  and 
took  $160  from  the  cash  drawer;  that,  in  groping  his  way  out,  he  ran 

19 — Compare  the  authorities  cited  in  W.,  5§  285-291. 


150  TESTIMONIAL    EVIDENCE.  No.  149. 

against  a  shotgun,  which  he  had  placed  there  to  take  with  him  when  he 
went  to  see  his  uncle,  as  he  expected  to  hunt  on  the  way,  and  took  it  with 
him ;  that  when  he  got  outside  of  the  store  he  realized  that  Murray  was 
in  there;  that  he  was  heavily  embarrassed,  and  that  he  thought  the  best 
thing  that  he  could  do  was  to  fall  off  the  earth  for  awhile ;  and  then  re- 
lated to  the  officer  the  course  which  he  took  in  going  from  the  place  of 
the  homicide  in  Iowa  to  Dawson  City,  Alaska.  It  further  appeared  from 
the  testimony  of  the  officer  that  defendant,  when  arrested,  denied  his 
true  name,  gave  a  fictitious  one,  and,  on  being  informed  that  he  was  un- 
der arrest  for  the  murder  of  Murray  committed  in  Iowa,  denied  that  he 
had  ever  lived  there,  and  claimed  that  he  was  from  Ohio. 

Granger,  J. :  "Inaccurate  use  of  such  words  as  'confessions,'  'admis- 
sions,' and  'declarations'  has  led  to  some  confusion  in  the  cases;  but,  on 
authority  and  reason,  there  is  a  clear  distinction  between  a  confession 
and  an  admission  or  declaration,  unless  the  admission  or  declaration  has 
within  it  the  scope  and  purpose  of  a  confession,  in  which  its  distinctive 
feature,  as  an  admission  or  declaration,  is  lost  in  the  broader  term  'con- 
fession.' A  confession  is  a  voluntary  admission  or  declaration  by  a  per- 
son of  his  agency  or  participation  in  a  crime.  .  .  .  To  make  an  admission 
or  declaration  a  confession,  it  must  in  some  way  be  an  acknowledgement 
of  guilt.  .  .  .  The  manifest  purpose  of  [the  defendant's]  statements  was 
to  show  himself  innocent,  and,  if  his  statements  are  true,  he  is  innocent 
of  the  crime  charged ;  so  that  by  no  possibility  could  he  have  been  in- 
duced, because  of  the  promise  of  secrecy,  to  relate  what  was  untrue,  to 
his  prejudice."^'' 


WARICKSHALL'S   CASE     (1783). 

I  Leach  Cr.  L.,  ^d  ed.,  2q8. 

A  confession  was  obtained  by  a  promise  of  favor.  "It  was  con- 
tended by  her  counsel  that  as  the  fact  of  finding  the  stolen  property  in 
her  custody  had  been  obtained  through  the  means  of  an  inadmis- 
"  sible  confession,  the  proof  of  that  fact  ought  also  to  be  rejected; 
for  otherwise  the  faith  which  the  prosecutor  had  pledged  could  be 
violated,  and  the  prisoner  made  the  deluded  instrument  to  her  own 
conviction."  Nares,  J.,  and  Eyre,  B.  :  "It  is  a  mistaken  notion  that 
the  evidence  of  confessions  and  facts  which  have  been  obtained  from 
prisoners  by  promises  or  threats  is  to  be  rejected  from  a  regard  to 
public   faith ;   no  such    rule    ever    prevailed.      The    idea    is    novel    in 

20 — Cnrrey,  Cj./m  People  v.  Strong,  30  pointment    to     meet    at    that    place,     etc.; 

C'al.   157    (1866):     "The  word  'confessions'  but  it  is   nowhere  to  be  found  in  the  tes- 

is   not   the    mere   equivalent   of   the    words  timony   &f   the   witnesses   that   he  admitted 

'statements'     or     'declarations.'       The     de-  or    confessed    to    any    participation    in    the 

fendant     made     statements     to     several     of  homicide." 

the   witnesses,    as    they   testified,   respecting  Compare   the    authorities  cited   in    W.,    § 

the    departure    of    Holmes     [the    murdered  821. 
man]    for   San   Francisco,   and   of  their   ap- 


1 


No.  151.  CONFESSIONS.  151 

theory,  and  would  be  as  dangerous  in  practice  as  it  is  repugnant  to 
the  general  principles  of  criminal  law.  Confessions  are  received 
in  evidence,  or  rejected  as  inadmissible,  under  a  consideration  whether 
they  are  or  are  not  entitled  to  credit.  A  free  and  voluntary  confession 
is  deserving  of  the  highest  credit,  because  it  is  presumed  to  flow  from 
the  strongest  sense  of  guilt,  and  therefore  it  is  admitted  as  proof  of  the 
crime  to  which  it  refers.  But  a  confession  forced  from  the  mind  by  the 
flattery  of  hope  or  by  the  torture  of  fear  comes  in  so  questionable  a 
shape  when  it  is  to  be  considered  as  evidence  of  guilt  that  no  credit  ought 
to  be  given  to  it,  and  therefore  it  is  rejected."^^ 


REGINA  V.  MOORE    (1852). 

2  Den.  Cr.  C.  522. 

Wilful  murder  of  a  new-born  child  by  its  mother;  verdict  of  guilty 
of  concealing  its  birth.  There  was  offered  in  evidence  against  her  a  con- 
fession made  by  her,  in  the  presence  of  her  mistress,  to  a  surgeon 
who  attended  her,  of  her  having  strangled  her  child  with  a  thread, 
and  placed  the  dead  body  in  a  privy,  where  it  was  found,  with  the  thread 
around  its  neck.  Her  mistress  had  told  her,  before  the  surgeon  came  in, 
that  'she  had  better  speak  the  truth,'  and,  in  answer,  she  said  she  would 
tell  it  to  the  surgeon.  An  objection  was  taken,  that  any  subsequent  con- 
fession was  inadmissible.  After  consulting  Coleridge,  J.,  his  Lordship 
received  the  evidence,  being  of  opinion  that  in  this  case,  her  husband  not 
being  the  prosecutor,  nor  the  offence  in  any  way  connected  with  the 
management  of  the  house,  the  prisoner's  mistress  could  not  be  considered 
as  having  any  control  over  the  prosecution  so  as  to  raise  a  presumption 
that  the  inducement  held  out  by  her  would  be  likely  to  cause  her  to  tell 
an  untruth.  Mr.  Creasy,  for  the  accused:  "We  must  not  look  at  the 
case  as  lawyers,  but  consider  what  would  be  the  natural  result  of  an 
inducement  by  such  a  person.  The  test  is  not,  it  is  submitted.  Who  is 
the  party  to  set  justice  in  motion  ?,  but.  Who  is  most  likely  to  have  influ- 
ence?   Who  is  most  natural  that  the  prison  should  look  to?" 

Parke,  B.,  for  the  eight  Judges  :  "Perhaps  it  would  have  been  better  to 
have  held  (when  it  was  determined  that  the  Judge  was  to  decide  whether 
the  confession  was  voluntary)  that  in  all  cases  he  was  to  decide  that  point 
upon  his  own  view  of  all  the  circumstances,  including  the  nature  of  the 
threat  or  inducement,  and  the  character  of  the  person  holding  it  out, 
together;   not  necessarily  excluding  the  confession  on  account  of  the 

21 — Shaw,  C.  J.,  in  Com.  v.  Morey,  i  induced,  by  the  pressure  of  hope  or  fear. 
Gray  462  (1854):  "The  ground  on  which  to  admit  facts  unfavorable  to  him  without 
confessions  made  by  a  party  accused,  un-  regard  to  their  truth,  in  order  to  obtain 
der  promises  of  favor  or  threats  of  in-  the  promised  relief  or  avoid  the  threat- 
jury,  are  excluded  as  incompetent  is,  not  cned  danger,  and  therefore  admissions  so 
because  any  wrong  is  done  to  the  accused  obtained  have  no  just  and  legitimate  ten- 
in    using    them,    but    because    he    may    be  dency  to  prove  the   facts  admitted." 


152  TESTIMONIAL    EVIDENCE.  No.  151. 

character  of  the  person  holding  out  the  inducement  or  threat.  But  a 
rule  has  been  laid  down  in  different  precedents  by  which  we  are  bound, 
and  that  is,  if  the  threat  or  inducement  is  held  out,  actually  or  construct- 
ively, by  a  person  in  authority,  it  cannot  be  received,  however  slight  the 
threat  or  inducement.  And  the  prosecutor,  magistrate,  or  constable,  is 
such  a  person;  and  so  the  master  or  mistress  may  be.  If  not  held  out  by 
one  in  authority,  they  are  clearly  admissible.  .  .  .  But  it  is  only  where 
the  offence  concerns  the  master  or  mistress  that  their  holding  out  the 
threat  or  the  promise  renders  the  confession  inadmissible.  ...  In  the 
present  case,  the  offence  of  the  prisoner,  in  killing  her  child  or  conceal- 
ing its  dead  body,  was  in  no  way  an  offence  against  the  mistress  of  the 
house;  she  was  not  the  prosecutrix  then,  and  there  was  no  probability 
of  herself  or  the  husband  being  the  prosecutor  of  an  indictment  for  that 
offence."^^ 


REGINA  V.  BALDRY    (1852). 
2  Den.  Cr.  C.  430. 

At  the  Spring  Assizes  for  the  county  of  Suffolk,  the  prisoner  was 
tried  before  Lord  Campbell,  C.  J.,  upon  an  indictment  charging  him 
with  having  administered  poison  to  his  wife  with  intent  to  murder 
"  her.  On  the  part  of  the  prosecution  a  police  constable  was  called 
whose  evidence  thus  began :  "I  went  to  the  prisoner's  house  on  the  17th 
December.  I  saw  the  prisoner.  Dr.  Vincent,  and  Page,  another  con- 
stable, were  with  me.  I  told  him  what  he  was  charged  with.  He  made 
no  reply,  and  sat  with  his  face  buried  in  his  handkerchief.  I  believe  he 
was  crying.  I  said  he  need  not  say  anything  to  criminate  himself;  what 
he  did  say  would  be  taken  down  and  used  as  evidence  against  him." 
The  admission  of  this  was  objected  to. 

Pollock,  C.  B.  :  "Where  the  admonition  to  speak  the  truth  has  been 
coupled  with  any  expression  importing  that  it  would  be  better  for  him 
to  do  so,  it  has  been  held  that  the  confession  was  not  receivable, — the 
objectionable  words  being  that  it  would  be  better  to  'speak  the  truth, 
because  they  import  that  it  would  be  better  for  him  to  say  something. 
This  was  decided  in  the  case  of  Reg.  v.  Garner,  i  Den.  C.  C.  329.  The 
true  distinction  between  the  present  case  and  a  case  of  that  kind  is,  that 
it  is  left  to  the  prisoner  a  matter  of  perfect  indifference  whether  he  should 
open  his  mouth  or  not." 

Parke,  B.  :  "I  entirely  agree  with  the  Lord  Chief  Baron  and  with  the 
view  taken  by  Lord  Campbell  at  the  trial.  ...  By  the  law  of  England, 
in  order  to  render  a  confession  admissible  in  evidence  it  must  be  per- 
fectly voluntary;  and  there  is  no  doubt  that  any  inducement  in  the 
nature  of  a  promise  or  of  a  threat  held  out  by  a  person  in  authority, 
vitiates  a  confession.  The  decisions  to  that  effect  have  gone  a  long 
way ;  whether  it  would  not  have  been  better  to  have  allowed  the  whole 

22 — Compare  the  authorities  cited  in  W.,   §§  829-830. 


No.  153.  CONFESSIONS.  153 

to  go  to  the  jury,  it  is  now  too  late  to  inquire,  but  I  think  there  has 
been  too  much  tenderness  towards  prisoners  in  this  matter.  I  confess 
that  I  cannot  look  at  the  decisions  without  some  shame  when  I  con- 
sider what  objections  have  prevailed  to  prevent  the  reception  of  con- 
fessions in  evidence ;  and  I  agree  with  the  observation  of  Mr.  Pitt  Tay- 
lor, that  the  rule  has  been  extended  quite  too  far,  and  that  justice 
and  common  sense  have,  too  frequently,  been  sacrificed  at  the  shrine  of 
mercy.  We  all  know  how  it  occurred.  Every  judge  decided  by  him- 
self upon  the  admissibility  of  the  confession,  and  he  did  not  like  to 
press  against  the  prisoner,  and  took  the  merciful  view  of  it.  If  the 
question  were  res  nova  I  cannot  see  how  it  could  be  argued  that  any 
advantage  is  offered  to  a  prisoner  by  his  being  told  that  what  he  says 
will  be  used  in  evidence  against  him." 

Erle,  J. :  "I  think  that  the  statement  of  the  prisoner  was  properly 
received.  In  my  opinion  the  best  defence  of  innocence  is  founded  on 
the  statement  which  he  is  shown  to  have  used  when  first  accused ;  and 
I  am  of  opinion  that  when  a  confession  is  well  proved  it  is  the  best  evi- 
dence that  can  be  produced ;  and  that  unless  it  be  clear  that  there  was 
either  a  threat,  or  a  promise  to  induce  it,  it  ought  not  to  be  excluded. 
I  am  much  inclined  to  agree  with  Mr.  Pitt  Taylor ;  and  according  to 
my  judgment,  in  many  cases  where  confessions  have  been  excluded, 
justice  and  common  sense  have  been  sacrificed,  not  at  the  shrine  of 
mercy,  but  at  the  shrine  of  guilt.  The  words  'will'  or  'may'  as  used 
in  the  caution  are,  in  effect,  the  same;  one  being  absolute,  the  other 
contingent.  In  the  able  argument  that  has  been  addressed  to  us,  it 
has  been  contended  that  the  assurance  that  the  statement  will  be  used, 
promises  an  advantage,  and  should  therefore  exclude  the  confession; 
whilst  it  is  admitted  that  this  supposed  advantage  promised  contingently 
does  not  exclude  it.  But  if  it  be  an  advantage  when  promised  posi- 
tively, it  is  also  a  promise  of  advantage  when  made  contingently,  and 
if  it  does  not  exclude  in  one,  neither  ought  it  in  the  other.''^^ 


HENDRICKSON  v.  PEOPLE.   (1854). 

10  N.  Y.  jj. 

The  accused  had  been  examined  as  a  witness  before  the  coroner,  not 

being  under  arrest  or  charge,  but  was  not  cautioned  by  the  magistrate 

as  to  his  privilege  not  to  answer  incriminating  questions;  his  an- 

swers  on  this  examination  were  received  by  a  majority  of  the 

Court. 

Parker,  J. :  "I  do  not  see  how,  upon  principle,  the  evidence  of  a  wit- 
ness, not  in  custody  and  not  charged  with  crime,  taken  either  on  a  coro- 
ner's inquest  or  before  a  committing  magistrate,  could  be  rejected.  It 
ought  not  to  be  excluded  on  the  ground  that  it  was  taken  upon  oath. 

23 — Compare  the  authorities  cited  in  W.,   §§  832-838. 


154  TESTIMONIAL    EVIDENCE,  No.  153. 

The  evidence  is  certainly  none  the  less  reliable  because  taken  under  the 
solemnity  of  an  oath.  .  .  .  Nor  can  the  exclusion  of  the  evidence  de- 
pend on  the  question  whether  there  was  any  suspicion  of  the  guilt  of  the 
witness  lurking  in  the  heart  of  any  person  at  the  time  the  testimony  was 
taken ;  that  would  be  the  most  dangerous  of  all  tests,  as  well  because  of 
the  readiness  with  which  proof  of  such  suspicion  might  be  secured,  as  of 
the  impossibility  of  refuting  it.  .  .  .  The  witness  may  refuse  to  answer, 
and  his  answers  are  to  be  deemed  voluntary  unless  he  is  compelled  to 
answer  after  having  declined  to  do  so;  in  the  latter  case  only  will  they 
be  deemed  compulsory  and  excluded." 

Selden,  J.,  dissenting:  "The  mental  disturbance  produced  by  a  direct 
accusation,  or  even  a  consciousness  of  being  suspected  of  crime,  is  always 
great,  and  in  many  cases  incalculable.  The  foundation  of  all  reliance  upon 
human  testimony  is  that  moral  sentiment  which  universally  leads  men, 
when  not  under  some  strong  counteracting  influence,  to  tell  the  truth. 
This  sentiment  is  sufficiently  powerful  to  resist  a  trifling  motive,  but  will 
not  withstand  the  fear  of  conviction  for  crime.  Hence,  the  moment  that 
fear  seizes  the  mind,  the  basis  of  all  reliance  upon  its  manifestations  is 
gone The  mind,  confused  and  agitated  by  the  apprehension  of  dan- 
ger, cannot  reason  with  coolness,  and  it  resorts  to  falsehood  when  truth 
would  be  safer,  and  is  hurried  into  acknowledgements  which  the  facts 
do  not  warrant.  Neither  false  statement  nor  confessions,  therefore,  af- 
ford any  certain  evidence  of  guilt  when  made  under  the  excitement  of 
an  impending  prosecution  for  crime." 


PEOPLE  v.  McMAHON  (1857). 

15  N.  Y.  38. 

The  accused  had  been  examined  as  a  witness  before  coroner,  but  was 
at  the  time  in  custody  charged  as  the  offender ;  his  answers  on  this  ex- 
amination were  rejected.^*  Selden,  J.:  "The  word  'voluntary'  in 
■*-^*  judicial  examinations  means]  'proceeding  from  the  spontaneous 
suggestion  of  the  party's  own  mind,'  'free  from  the  influence  of  any  dis- 
turbing cause.'  ...  It  is  considered  that  a  judicial  oath,  administered 
when  the  mind  is  disturbed  and  agitated  by  a  criminal  charge,  may  have 
that  effect  [of  preventing  free  and  voluntary  mental  action],  and  hence 
the  exclusion.  .  .  .  [Hence,  such  an  examination  under  oath  is  not  to  be 
rejected]  unless  that  oath  was  administered  in  the  course  of  some  judi- 
cial inquiry  in  regard  to  the  crime  itself  for  which  the  prisoner  is  on  trial ; 
.  .  .  [while  it  is  also  necessarily  admissible]  if  at  the  time  it  was  made 
the  prisoner  was  not  himself  resting  under  any  charge  or  suspicion  of 
having  committed  the  crime." 

24 — The    membership    of    the    Court    had   changed    since    the    decision    in    People    V. 

Hendrickson. 


No.  156.  CONFESSIONS.  155 

TEACHOUT  V.  PEOPLE  (1869). 

41  N.  Y.  II. 

The  accused  had  been  examined  as  a  witness  before  the  coroner, 
while  under  suspicion  and  after  notice  that  he  would  probably  be  arrested, 
and  the  coroner  had  cautioned  him  as  to  his  rig^ht  not  to  answer; 
'"**  two  judges,  dissenting,  invoked  the  ruling  in  People  v.  McMahon; 
the  majority,  repudiating  the  reasoning  of  that  opinion,  held  the  answers 
admissible.  Woodruff,  J.,  for  the  majority:  "If  the  declarations  made 
under  consciousness  of  suspicion  are  for  that  reason  unreliable,  they  must 
be  unreliable  whenever  and  wherever  made  .  .  .  and  equally  when  the 
suspected  party  encounters  that  suspicion  while  fully  at  large  among 
third  parties,  as  when  called  as  a  witness  to  state  if  he  sees  fit  what  he 
knows  of  the  cause  of  the  death.  And  if  consciousness  of  suspicion  ren- 
ders proof  of  his  declarations  unreliable,  so  also  should  it  render  proof 
of  his  acts  unreliable,  and  they  should  be  equally  excluded.  And  yet  it 
has  not,  I  think,  been  doubted  that  proof  of  the  acts  of  the  party  under 
the  very  pressure  of  suspicion  is  competent.  .  .  .  [Flight,  concealment, 
etc.]  may  be  proved  as  some  indication  of  conscious  guilt,  and  yet  it  is 
consistent  with  innocence,  and  may  be  the  mere  result  of  fear,  and  the 
pressure  of  circumstances  may  lead  the  innocent  man  to  resort  to  this  as 
a  measure  of  safety.  This  is  quite  as  true  as  that  suspicion  will  lead  a 
man  to  false  statements  for  the  same  purpose.  There  must  be  some 
limit  to  the  rule  excluding  declarations,  short  of  the  test  that  they  be 
made  when  he  is  under  no  consciousness  that  he  is  under  suspicion ;  else 
the  whole  conduct  of  the  party,  from  the  moment  he  is  apprised  that  he 
is  suspected,  must  be  declared  to  be  too  unreliable  to  be  made  the  subject 
of  any  inference  whatever."-^ 


SUB-TITLE  III. 

TESTIMONIAL    REHABILITATION. 

(Supporting  the  Credit  of  an  Impeached  Witness.) 

PEOPLE  V.  RECTOR  (1838). 

ip  Wend.  56Q,  600,  611. 

Murder  in  a  bawdy-house.     One  Matthew  Gillespie,  who  was  in  ad- 
joining house  and  saw  the  affray,  testified  on  behalf  of  the  accused. 
On  his  cross-examination  he  testified  that  he  had  a  wife  and  chil- 
*""      dren  in  the  fifth  ward  of  the  city,  but  that  for  the  last  two  years  he 

«S — Compare  the  authorities  cited  in  W.,   §852. 


156  TESTIMONIAL   REHABILITATION.  No.  156. 

had  lived  in  adulterous  intercourse  with  a  woman  who  was  with  him  on 
the  night  in  question,  and  that  during  all  that  time  he  had  slept  and  ate 
in  the  house  wherein  he  then  was,  which  was  in  the  second  ward  of  the 
city;  that  he  was  in  the  habit  of  frequenting  porter-houses  at  unsea- 
sonable hours,  and  that  during  the  last  two  years  he  had  been  in  no 
business,  and  had  lived  upon  a  fund  of  from  three  to  five  hundred  dol- 
lars which  he  had  before  accumulated,  and  if  he  had  paid  his  debts  he 
would  have  had  but  little  if  any  money.  .  .  .  The  counsel  for  the  prose- 
cution, after  proving  by  two  witnesses  that  Gillespie  had,  previous  to 
giving  his  testimony,  disavowed  all  knowledge  of  the  transaction,  and 
contradicting  his  testimoney  in  other  respects,  called  one  Britton  B.  Tall- 
man  as  a  witness,  and  inquired  of  him  as  to  the  general  character  of 
Gillespie  for  truth  and  veracity;  to  which  he  answered  that  he  knew 
nothing  against  it,  never  having  heard  his  character  for  truth  called 
in  question.  The  counsel  for  the  prisoner  then  called  a  witness,  and 
avowed  their  object  to  adduce  testimony  to  maintain  the  character  of 
Gillespie,  and  offered  to  prove  by  the  witness  and  by  several  others  then 
present,  that  his  general  character  for  truth  stood  perfectly  fair  and 
that  they  would  give  as  full  credit  to  his  testimony  as  to  that  of  any 
other  individual.     The  Court  excluded  the  testimony  offered. 

Bronson,  J. :  "There  are  several  ways  of  impeaching  the  credit  of  a 
witness.  The  party  against  whom  the  witness  is  called  may  disprove 
the  facts  stated  by  him,  or  may  examine  other  witnesses  as  to  his  gen- 
eral character  for  truth.  In  answer  to  evidence  against  character,  the 
other  party  may  cross-examine  the  witnesses  as  to  their  means  of  knowl- 
edge, may  attack  their  general  character,  or  by  fresh  evidence  support 
the  character  of  his  own  witness.  The  credit  of  a  witness  may  be  shaken, 
and  perhaps  entirely  destroyed  by  his  own  cross-examination,  or  by  dis- 
proving the  fact  to  which  he  has  disposed.  But  in  neither  of  these 
cases  can  the  witness  be  supported  by  proving  his  general  good  character 
as  a  man  of  truth.  With  only  one  or  two  exceptions  at  most,  and  those 
resting  on  special  considerations  not  applicable  to  this  case,  such  evi- 
dence is  only  admissible  in  answer  to  evidence  of  general  character, 
first  given  by  the  other  party. 

"Why  should  such  evidence  be  received,  when  the  witness  is  on  the 
stand  to  give  any  explanation  of  his  conduct  which  the  truth  of  the  case 
will  permit?  G.  was  not  obliged  to  proclaim  his  own  infamy.  ,  ,  .  But 
aside  from  this  consideration,  if  there  was  anything  to  extenuate  his 
conduct  in  abandoning  his  family  and  living  in  adultery,  he  was  at 
liberty  to  state  it.  He  stood  there  to  make  a  picture  of  himself,  and  it 
is  not  to  be  presumed  that  he  would  draw  it  in  darker  colors  than  the 
truth  of  the  case  absolutely  required.  Neither  the  party  who  produces 
a  witness  nor  the  witness  himself  has  any  right  to  complain  that  com- 
purgators are  not  allowed,  when  there  has  been  no  impeachment  beyond 
the  facts  disclosed  by  the  witness  himself." 

Nelson,   C.  J.,   opposing,    (after  pointing  out   that  good  character, 


No.  157.  GOOD    CHARACTER,    ETC.  157 

though  an  essential  element  of  testimony,  is  assumed,  and  must  first  be 
attacked  by  the  opponent)  :  "Now  what  is  the  ground  and  reason  for 
allowing  a  party  to  introduce  general  evidence  in  reply  to  fortify  and 
support  a  witness  who  has  been  impeached  ?  It  is  surely  not  because  the 
impeachment  has  been  effected  by  the  testimony  of  witnesses,  or  by  gen- 
eral evidence  as  to  character,  or  in  a  particular  way, — all  this  of  itself 
can  be  of  no  importance;  but  it  is  because  the  impeachment,  the  effect  of 
the  proof,  in  whatever  way  introduced,  tends  directly  to  overcome  the  pre- 
sumption of  good  character  upon  which  the  party  had  a  right  in  the  first 
instance  to  rely;  because  a  material  part  of  his  proof  is  struck  at  by 
shaking  confidence  in  the  integrity  and  truth  of  the  witness  upon  whom 
it  depends.  ...  If  that  [impeachment]  can  be  removed,  the  presumption 
revives,  and  the  facts  are  again  sustained  upon  the  good  character  of  the 
witness.  Regarding,  then,  the  principle  upon  which  testimony  in  reply 
to  the  impeachment  of  a  witness  is  admitted,  and  the  grounds  and  reasons 
upon  which  it  rests,  the  Court  should  rather  look  to  the  effect  of  the 
impeachment  than  to  the  mode  and  manner  in  which  it  is  brought  about. 
It  can  be  of  little  concern  to  a  party  whether  the  moral  character  of  his 
witness  is  destroyed  by  the  testimony  of  others  called  to  speak  to  it, 
or  by  a  cross-examination ;  the  effect  upon  him,  to  the  extent  of  the  im- 
peachment, is  exactly  the  same ;  he  loses  the  benefit  of  the  evidence  in 
both  cases,  and  for  the  same  cause, — the  discredit  of  the  witness.  .  .  . 
But  it  is  urged  that,  as  the  witness  is  upon  the  stand,  he  may  be  ex- 
amined himself  in  explanation  of  the  impeaching  facts.  The  obvious 
answer  to  this  is  that  the  character  of  the  witness  for  truth  in  the 
given  case  is  proposed  to  be  sustained  by  the  evidence  in  reply  notwith- 
standing the  existence  of  the  facts  called  out  on  the  cross-examina- 
tion. The  case  supposes  explanation  impossible,  but  that  still  his  char- 
acter for  truth  may  be  upheld  by  his  neighbors  and  acquaintances."-*^ 


GERTZ  V.  FTTCHBURG  R.  CO.    (1884). 

JJ7  Mass.  yy. 
Tort  for  personal   injuries. 

Holmes,  J. :    "In  this  case,  the  plaintiff  having  testified  as  a  witness, 
the  defendant  put  in  evidence  the  record  of  his  conviction  in  1876.  in  the 
United  States  District  Court,  of  the  crime  of  falsely  personating 
■*•**'       a  United  States  revenue  officer.     The  plaintiff  then  offered  evi- 
dence of  his  character  and  present  reputation  for  veracity,  which  was 

26 — Dodd     V.      Norris,      3      Comp.      519  she   came    to    be    re-examined;"    upon    this 

(1814);    seduction;   the  daughter,  on   cross-  ruling   the   following  note  by  the  reporters 

examination,     having     admitted     indelicate  is   made  in    i   C.  &   P.    100    {Bate  v.  Hill), 

conduct     with     the     defendant,     her     good  where    Park,    J.,    had    made    the    opposite 

character  was  not  admitted  in  her  support;  ruling:   "The  course  allowed  by   Mr.  Justice 

EUenborough,    L.     C.    J.:      "The    questions  Park    in    the    present    case    is    much    more 

put   to   herself    on    cross-examination    there  conducive     to    the     attainment    of    justice, 

was    an    ample    opportunity    of    explaining,  .      .      .      Lord     EUenborough    says    that     it 

as    far    as    the    truth    would    permit,    when  is  to   be  set  right  in  re-examination.     This 


158  TESTIMONIAL   REHABILITATION.  No.  157. 

excluded,  subject  to  his  exception.  We  think  that  the  evidence  of  his 
reputation  for  truth  should  have  been  admitted,  and  that  the  exception 
must  be  sustained.  There  is  a  clear  distinction  between  this  case  and  those 
in  vi^hich  such  evidence  has  been  held  inadmissible,  for  instance,  to  rebut 
evidence  of  contradictory  statement ;  or  where  the  witness  is  directly 
contradictory  as  to  the  principal  fact  by  other  witnesses.  In  such  cases 
it  is  true  that  the  result  sought  to  be  reached  is  the  same  as  in  the 
present, — to  induce  the  jury  to  disbelieve  the  witness.  But  the  mode 
of  reaching  the  result  is  different.  For,  while  contradiction  or  proof  of 
contradictory  statements  may  very  well  have  the  incidental  effect  of 
impeaching  the  character  for  truth  of  the  contradicted  witness  in  the 
minds  of  the  jury,  the  proof  is  not  direct  to  the  point.  The  purpose  and 
only  direct  effect  of  the  (impeaching)  evidence  are  to  show  that  the 
witness  is  not  to  be  believed  in  this  instance.  But  the  reason  why  he 
is  not  to  be  believed  is  left  untouched.  That  may  be  found  in  forget- 
fulness  on  the  part  of  the  witness,  or  in  his  having  been  deceived,  or  in 
any  other  possible  cause.  The  disbelief  sought  to  be  produced  is  per- 
fectly consistent  with  an  admission  of  his  general  character  for  truth, 
as  well  as  for  the  other  virtues;  and  until  the  character  of  a  witness  is 
assailed,  it  cannot  be  fortified  by  evidence.  On  the  other  hand,  when 
it  is  proved  that  a  witness  has  been  convicted  of  a  crime,  the  only 
ground  for  disbelieving  him  which  such  proof  affords  is  the  general 
readiness  to  do  evil  which  the  conviction  may  be  supposed  to  show.  It 
is  from  that  general  disposition  alone  that  the  jury  is  asked  to  infer  a 
readiness  to  lie  in  the  particular  case,  and  thence  that  he  has  lied  in  fact. 
The  evidence  has  no  tendency  to  prove  that  he  was  mistaken,  but  only 
that  he  has  perjured  himself,  and  it  reaches  that  conclusion  solely 
through  the  general  proposition  that  he  is  of  bad  character  and  unworthy 
of  credit."^'^ 


STEWART  V  PEOPLE  (1871). 

2^  Mich,  dj,  74. 

Burglary;  one  Meyers  had  testified  that  the  defendant  had  told  him 
where  the  stolen  goods  were  concealed,  and  a  letter  of  Meyers  was  offered 

to  be  proved  in  corroboration  of  his  testimony. 
■*-^^       CooLEY,  J :     "The  writer  of  the  letter,  it  appears,  was  the  prin- 
cipal  witness  against  the  prisoner,   and  had  testified  to  a  conversation 
had  with  him  in  Chicago,  in  which  the  prisoner  made  statements  indicat- 

looks    very    well    in    theory.      Those    used  to  allow  a  defendant  to  blast  the  character 

to   courts   of  justice   well   know   that   if  the  of  a  person  he  has  seduced  by   his  insinua- 

character    of    a    party    seduced    is    attacked  tions   and    then    not   to   allow   her   to  clear 

in    her    cross-examination,    though    the    wit-  her    character    by    the    best    means    in    her 

ness    may    deny    the    things    insinuated,    a  power." 

jury  often  believe  that  though  denied  there  Compare    the    authorities   cited    in    W.,    § 

IS   some    foundation    for   the    insinuation,    if  1106. 

witnesses  are   not  called  to  convince   them  27— Compare  the  authorities  cited  in  W., 

of   the   contrary.      It    is    a    little    too    much  §  1109. 


No.  158,  SIMILAR   CONSISTENT   STATEMENTS,    ETC.  159 

ing  his  participation  in  this  offense.  On  his  cross-examination  he  was 
asked  whether  he  did  not  have  a  conversation  with  Edward  O'Connor, 
Robert  McKinney  and  Michael  Kilduff,  one  morning  during  the  exam- 
ination of  the  prisoner  before  the  justice,  in  which  he  told  said  O'Connor, 
McKinney  and  Kilduff  that  the  prisoner  was  not  the  man  with  whom  he 
had  the  conversation  at  Chicago;  and  he  replied  in  the  negative.  He 
made,  however,  the  following  statement :  McKinney,  Kilduff,  and  one 
Hamilton  were  his  bail  on  a  criminal  charge  pending  against  him  at  the 
time  Stewart  was  arrested  on  his  complaint,  on  the  charge  now  being 
tried.  O'Connor,  Kilduff  and  McKinney  came  to  his  house  and  told 
him  if  he  gave  evidence  against  Stewart  they  would  throw  up  his  bail. 
He  did  give  such  evidence  and  was  surrendered  by  his  bail  as  they  had 
threatened.  These  three  persons  were  then  called  by  the  defense  and  tes- 
tified that  the  witness  did  say  to  them  at  the  time  inquired  about  that 
the  prisoner  was  not  the  man  with  whom  he  had  the  conversation  in 
Chicago.  In  reply  to  this  testimony,  the  prosecution  claimed  the  right 
to  put  in  evidence  the  letter  in  question,  which  was  written  by  the  wit- 
ness in  Chicago  to  his  brother  in  Bay  City,  after  the  time  of  the  alleged 
conversation  with  the  prisoner  in  Chicago,  and  which  spoke  of  the  pris- 
oner being  there,  and  said,  "If  you  want  him  send  word."  The  prose- 
cution also  offered  to  show  by  the  jailer  that  before  the  prisoner  was 
arrested,  and  before  there  was  any  talk  of  arresting  him,  the  witness 
had  made  the  same  statement  in  regard  to  the  conversation  at  Chicago 
which  he  has  sworn  to  in  court.  The  circuit  judge  admitted  his  evi- 
dence, and  the  defense  excepted.  The  question  upon  this  branch  of  the 
case  appears  to  be  this :  Whether  after  an  attempt  to  impeach  a  wit- 
ness by  showing  that  he  has  made  out  of  court  statements  inconsistent 
with  those  sworn  to,  his  evidence  can  be  supported  by  the  testimony  of 
witnesses  who  show  that  on  other  occasions  his  account  of  the  transac- 
tion has  corresponded  with  that  given  in  court. 

"This  question  appears  to  us  to  be  one  of  no  ordinary  difficulty.  If 
it  were  an  established  fact  that  the  witness  had  made  the  contradictory 
statement,  we  should  say  that  he  supporitng  evidence  here  offered  was 
not  admissible.  If  a  witness  has  given  different  accounts  of  an  affair 
on  several  different  occasions,  the  fact  that  he  has  repeated  one  of  these 
accounts  oftener  than  the  opposite  one  can  scarcely  be  said  to  entitle  it 
to  any  additional  credence.  A  man  untruthful  out  of  court  is  not  likely 
to  be  truthful  in  court ;  and  where  the  contradictory  staements  are 
proved,  a  jury  is  generally  justified  in  rejecting  the  testimony  of  the  wit- 
ness altogether.  But  in  these  cases  the  evidence  of  contradictory  state- 
ments is  not  received  until  the  witness  has  denied  making  them,  so  that 
an  issue  is  always  made  between  the  witness  sought  to  be  impeached  and 
the  witness  impeaching  him.  The  jury,  therefore,  before  they  can  deter- 
mine how  much  the  contradictory  statements  ought  to  shake  the  credit  of 
the  witness,  are  required  first  to  find  from  conflicting  evidence  whether 
he  made  them  or  not.  .  .  .  Now  there  are  many  cases  in  which,  if  evi- 


160  TESTIMONIAL  REHABILITATION.  No,  158. 

dence  is  given  of  statements  made  by  a  witness  in  conflict  with  those  he 
has  sworn  to,  his  previous  statements  should  not  only  be  received  in  sup- 
port of  his  credit,  but  would  tend  very  strongly  in  that  direction.  If, 
for  instance,  the  witness  is  himself  the  prosecutor,  and  has  already  made 
sworn  complaint,  there  could  be  no  doubt,  we  suppose,  that  the  pendency 
of  this  complaint,  its  contents  and  the  relation  of  the  witness  to  it, 
might  be  put  in  evidence,  and  that  they  would  raise  a  strong  probability 
that  the  testimony  as  to  conflicting  accounts  as  having  been  given  about 
the  same  time,  was  either  mistaken  or  corrupt.  Suppose  a  person  to 
be  testifying  in  a  case  in  which  he  had  spent  a  considerable  period  of 
time  and  a  large  sum  of  money  in  pursuing  an  alleged  criminal  to  con- 
viction, and  he  is  confronted  with  evidence  of  his  own  conflicting  state- 
ments; the  rule  would  be  exceedingly  unjust,  as  well  as  unphilosophical, 
which  should  preclude  his  showing,  at  least  by  his  own  evidence,  such 
circumstances  of  his  connection  with  the  case  as  would  make  the  im- 
peaching evidence  appear  to  be  at  war  with  all  the  probabilities.  And 
other  cases  may  readily  be  supposed  in  which,  under  the  peculiar  cir- 
cumstances, the  fact  that  the  witness  has  always  previously  given  a 
consistent  account  of  the  transaction  in  question  might  well  be  accepted 
by  the  jury  as  almost  conclusive  that  he  had  not  varied  from  it  in  the 
single  instance  testified  to  for  the  purpose  of  impeachment.  It  is  im- 
possible to  lay  down  any  arbitrary  rule  which  could  be  properly  applied 
to  every  case  in  which  this  question  could  arise ;  but  we  think  that  there 
are  some  cases  in  which  the  peculiar  circumstances  would  render  this 
species  of  evidence  important  and  forcible.  The  tender  age  of  the  prin- 
cipal witness  might  sometimes  be  an  important  consideration ;  and  the 
fact  that  the  previous  statement  was  put  in  writing — as  it  was  in  this 
instance — at  a  time  when  it  would  be  reasonably  free  from  suspicion 
might  very  well  be  a  controlling  circumstance.  We  think  the  circuit 
judge  ought  to  be  allowed  a  reasonable  discretion  in  such  cases,  and 
that  though  such  evidence  should  not  generally  be  received,  yet  that  his 
discretion  is  receiving  it  ought  not  to  be  set  aside  except  in  a  clear  case 
of  abuse."^^ 

38 — Compare  the  authorities  cited  in  W.,   §§  1122-1131. 


No.  159.  REAL  EVIDENCE.  161 


TITLE   III. 

REAL   EVIDENCE   (AUTOPTIC    PROFERENCE.) 

GENTRY   V.   McMINNIS    (1835.) 

S  Dana  382,  386. 

Robertson,  C.  J.:    "The  plaintiff  in  error  asks  the  reversal  of  a  judg- 
ment for  costs  and  nominal  damages,  obtained  against  him  by  the  de- 
fendant in  error  on  an  issue  involving  her  liberty  or  slavery,  in 
^  an  action  of  trespass,  which,   for  trying  her  claim  to   freedom, 

she  had  instituted  in  consequence  of  his  claiming  her  to  be  his  slave, 
and  exercising  over  her  the  dominion  of  a  master.  The  Circuit  Judge 
refused,  on  the  motion  of  the  plaintiff  in  error,  to  instruct  the  jury 
that  the  color  of  the  defendant,  also,  was  prima  facie  evidence  of  her 
being  a  slave;  but  told  them,  that  if,  upon  their  own  view,  they  should 
be  of  the  opinion,  that  she  was  a  white  woman,  they  should  find  for 
her.  The  counsel  denies  that  personal  inspection  by  the  jurors  on  the 
trial  is  proper  or  allowable  evidence.  ...  To  a  rational  man  of  perfect 
organization  the  best  and  highest  proof  of  which  any  fact  is  suscepti- 
ble is  the  evidence  of  his  own  senses.  This  is  the  ultimate  test  of 
truth,  and  is  therefore  the  first  principle  in  the  philosophy  of  evidence. 
.  .  .  Hence  autopsy,  or  the  evidence  of  one's  own  senses,  furnishes  the 
strongest  probability  and  indeed  the  only  perfect  and  indubitable  cer- 
tainty of  the  existence  of  any  sensible  fact.  .  .  .  [Jurors,]  when  they 
decide  altogether  on  the  testimony  of  others,  do  so  only  because  the 
fact  to  be  tried  is  unsusceptible  of  any  better  proof.  Their  own  per- 
sonal knowledge  of  the  fact  would  always  be  much  more  satisfactory 
to  themselves,  and  afford  much  more  certainty  of  truth  and  justice. 
.  .  .  Hence  the  policy  of  having  a  jury  of  the  vicinage;  and  hence,  too, 
jurors  have  not  only  been  permitted  but  required  to  decide  on  autopti- 
cal examination  wherever  it  was  practical  and  convenient.  A  white 
person  of  unmixed  blood  cannot  be  a  slave,  here,  where  there  can  be 
no  conventional  slaverv.  But  a  person  apparently  white  may,  never- 
theless, have  some  African  taint,  and  may,  consequently,  have  de- 
scended from  a  mother  who  was  a  slave ;  the  apparent  color  is  but 
prima  facie  evidence;  and  consequently,  when  a  jury,  on  their  view, 
decide  that  the  color  is  white,  testimony  will  be  admissible  to  prove 
that,  notwithstanding  the  visible  complexion,  there  is  African  blood  in 
the  veins  sufficient  to  doom  to  slavery.  If  on  inspection,  the  jury  had, 
without  considering  other  evidence,  believed  that  the  defendant  was  a 


162  REAL  EVIDENCE.  No.  159. 

white  woman,  they  would  have  been  bound  by  law  to  have  found  that 
she  was  free,  unless  the  legal  deduction  from  color  had  been  defeated 
or  rebutted  by  some  evidence  showing,  or  legitimately  tending  to  show, 
that,  notwithstanding  her  apparently  white  skin,  she  had  some  African 
taint,  and  was,  de  jure,  a  slave. "^ 


INGS'  TRIAL    (1820.) 

SS  How.  St.  Tr.  1051,  1088. 

The  "Cato-street  Conspiracy ;"  indictment  for  high  treason.  The 
defendant  claimed  that  he  was  ignorantly  drawn  into  the  movement, 
and  did  not  know  of  the  specific  murderous  designs  of  the  lead- 
"  ers.  A  constable  produced  the  conspirators'  weapons.  "Are  there 
now  placed  upon  the  table  the  things  which  were  taken  in  Cato- 
street?"  "Yes." — "You  gave  us  an  enumeration  yesterday  of  thirty- 
ball-cartridges,  firelock  and  bayonet,  one  powder-flask,  three  pistols, 
and  one  sword,  with  six  bayonet  spikes,  and  cloth  belt,  one  blunder- 
buss, pistol,  fourteen  bayonet  spikes,  and  three  pointed  files,  one  bay- 
dnet,  one  bayonet  spike,  and  one  sword  scabbord,  one  carbine  and 
bayonet,  two  swords,  one  bullet,  ten  hand-grenades;  [two  fire-balls, 
nine  hundred  and  sixty-five  ball  cartridges,  eleven  bags  of  gunpowder 
of  a  pound  each;]  I  do  not  see  them?"  "Here  they  are,"  producing  a 
bag. — "We  must  have  them  on  the  table."  They  were  emptied  out, 
and  the  jury  inspected  the  various  articles,  the  hand-grenades  being 
broken  open,  and  other  weapons  displayed.  No  objection  was  made  to 
this  proceeding,  which  was  taken  as  a  matter  of  course ;  but  the  coun- 
sel for  the  defence.  Mr.  Adolphus,  thus  referred  to  it  in  his  address : 
"You  have  had  that  which  produces  always  a  sort  of  mechanical 
effect.  I  do  not  mean  to  pay  an  ill  compliment  to  your  understand- 
ings;  but  you  have  had  a  display  of  visible  objects,  pikes  and  swords, 
guns  and  blunderbusses,  have  been  put  before  you,  to  the  end  that 
this  feeling  may  be  excited  in  every  man's  mind,  'How  should  I  like 
to  have  this  sort  of  thing  put  to  my  breast !  How  should  I  feel  if 
this  applied  to  my  chimney !  And  that  to  my  stair-case !',  and  so  on ; 
that  is,  that  the  individual  feeling  of  each  man  may  make  him  separate 

I — Lord  Eldon,  in  Twiss'  Life  of  Eldon,  in  rags,  came  forward  and  said,  if  I  would 

I,  354:     "When  I  was  Chief  Justice  of  the  allow   her  to   get   into   the  witness-box,   she 

Common     Pleas     (I     did     like    that    court!)  thought     she     could     say     something     that 

a    cause    was    brought    before    me    for    the  would    decide    the    cause.      Well,    she    was 

recovery    of    a    dog,    which    the    defendant  sworn    just    as    she    was,    all    in    rags,    and 

had    stolen    in    that    ground    [lying    in    the  leant    forward    towards     the     animal,     and 

fields    beyond    his      house]      and      detained  said,  'Come,  Billy,  come  and  kiss  me!'    The 

from   the    plaintiff,    its    owner.      We    had   a  savage-looking    dog   instantly     raised     itself 

great    deal    of    evidence,    and    the    dog    was  on     its    hind    legs,    put    its    immense    paws 

brought     into     court     and     placed     on     the  around    her    neck,    and    saluted    her.       She 

table    between     the    judge    and     witnesses.  had   brought   it   up    from    a   puppy.      Those 

It    was    a    very    fine    dog,    very    large,    and  words,    'Come,    Billy,    come    and    kiss    me,' 

very   fierce,    so    much    so    that    I    ordered    a  decided  the  cause." 

muzzle   to   be   put   on    it.      Well,    we   could  Compare   the    authorities   cited    in    W.,    § 

come   to   no   decision;    when    a    woman,  all  1154. 


No.  161.  REAL  EVIDENCE.  163 

himself  from  society, — may  make  him,  through  the  medium  of  his  own 
personal  hatred  of  violence .  or  apprehension  of  danger,  think  that  this 
contemptible  exhibition  of  imperfect  armoury  could  operate  on  a  town 
filled  by  a  million  of  loyal  inhabitants  or  could  give  the  means  of 
overwhelming  the  empire.  When  touched  by  reason,  they  shrink  to 
nothing,  and  will  never  produce  a  verdict  contrary  to  the  evidence  of 
facts.  It  is  like  displaying  the  bloody  robe  of  a  man  who  has  been 
stabbed  or  murdered ;  it  is  like  the  trick  practised  at  every  sessions, 
where  we  see  a  witness  pull  out  some  cloak  or  handkerchief  dipped 
in  blood  of  the  person,  to  produce  conviction  through  the  medium  of 
commiseration.  They  do  not  trust  to  description,  but  rely  upon  dis- 
play.     That  is  the  effect  of  the  production  of  these  arms."^ 


Mansfield,  L.  C.  J.,  Rules  for  Views,  i  Burr.  252,  (1757)  :  "Before 
the  4  and  5  Anne,  c.  16,  §  8,^  there  could  be  no  view  till  after  the  cause 
had  been  brought  on  to  trial.  If  the  Court  saw  the  question  in- 
volved in  obscurity  which  might  be  cleared  up  by  a  view,  the  cause 
was  put  off,  that  the  jurors  might  have  a  view  before  it  came  on  to  be 
tried  again.  The  rule  for  a  view  proceeded  upon  the  previous  opinion  of 
the  Court  or  judge,  at  the  trial,  'that  the  nature  of  the  question  made 
a  view  not  only  proper  but  necessary' ;  for  the  judges  at  the  assizes 
were  not  to  give  way  to  the  delay  and  expense  of  a  view  unless  they 
saw  that  a  case  could  not  be  understood  without  one.  However,  it 
often  happened  in  fact  that  upon  the  desire  of  either  party  causes  were 
put  off  for  want  of  a  view  upon  specious  allegations  from  the  nature 
of  the  question  that  a  view  was  proper, — without  going  into  the  proof 

2 — Mr.    David     Paul     Brown,     in     "The  they   went    further,   and   produced  some   of 

Forum,"   II,  448    (1856);   the  famous  Phil-  the   white    undergarments — corsets,   etc.,   all 

adelphia    advocate    is    recounting    the    story  besmeared    with    human    blood.      Upon    this 

of  a   cause   celebre   of   1834, — the  homicide,  exhibition   there   was   not  a    dry   eye   in   the 

by  a   disappointed  lover,   of   the  woman   he  court-house.      And    the   current    of   opinion 

loved:      "During    the    course    of    the    trial  continued    to    run     against    the    defendant 

there   was  an   occurrence   which   is   entitled  from    that   moment    until    the   close   of   the 

to   notice.      When    I    first   called   upon    the  case,  and  finally  bore  him  into  eternity." 

prisoner,    after   he   had    furnished    me   with  Compare   the  authorities  cited   in   W.,   §§ 

some    of    the    prominent    details,    I    asked  1157,    1158.      For   the   right   to   compel   dis- 

him   how   the   deceased    was   dressed   at   the  covery  from  an  accused,  see  post.  No.  479. 

time  of  the   blow.     He  said,   'In   black.'     I  3— Ry    this    statute,    "in    any    action"    at 

observed,     'That    was    better    than     if    the  Westminster,    where  it   shall   appear   to   the 

dress    had    been    white.'      Upon    which    the  Court    that    it    will    be    "proper    and    neces- 

prisoner    turned    hastily    round,    and    asked  sary"   that    the   jurors   who   are   to   try   the 

what   difference  that  could   make.     The  re-  issues    should    have   the   view   of   the    lands 

ply  was,   'No  difference,   in   regard  to  your  or    place    in    question,    "in    order    to    their 

offence;    but    a    considerable    difference    in  better    understanding    the    evidence"    to    be 

respect    to    the    effect    produced    upon    the  given    at    the    trial,    the    Court    may    order 

jury    by    the    exhibition    of    the    garments,  special    writs    of    distringas    or    habeas    cor- 

which,  no  doubt,  will  be  resorted  to.'     And  pora.   commanding  the   selection   of  six  out 

so  upon  the  trial  it  turned  out.     The  black  of    the    first    twelve    of   the    jurors    therein 

dress    was    presented      to      the     jury.— the  named,   or  a  greater   number,  to   whom   the 

eleven  punctures  through  the  bosom  pointed  matters     controverted     shall     be     shown     by 

out;  but  no  stain  was  observable,  no  excite-  two  persons  appointed  by  the  Court, 
ment     was    produced.       At    last,     however, 


164 


REAL  EVIDENCE. 


No.  161. 


so  as  to  be  able  to  judge  whether  the  evidence  might  not  be  under- 
stood without  it.  This  circuity  occasioned  delay  and  expense ;  to  pre- 
vent which  the  4  and  5  Anne,  c.  16,  8,  impowered  the  Courts  at 
Westminster  to  grant  a  view  in  the  first  instance  previous  to  the  trial, 
.  .  .  The  Courts  are  not  bound  to  grant  a  view  of  course ;  the  Act  only 
says  'they  may  order  it,  where  it  shall  appear  to  them  that  it  will  be 
proper  and  necessary.'  "* 


4 — Craig,  J.,  in  Springer  v.  Chicago,  135 
111.  553,  S6i,  26  N.  E.  S14  (1891):  "If 
the  parties  had  the  right  upon  the  trial 
to  prove  by  oral  testiniony  the  condition 
of  the  property  at  the  time  of  the  trial, 
.  .  .  upon  what  principle  can  it  be  said 
the  Court  shall  not  allow  the  jury  in  per- 
son to  view  the  premises  and  thus  ascer- 
tain the  condition  thereof  for  themselves? 
.  .  .  If  a  plat  or  a  photograph  of  the 
premises  would  be  proper  evidence,  why 
not  allow  the  jury  to  look  at  the  property 
itself,  instead  of  a  picture  of  the  same? 
There  may  be  cases  where  a  trial  Court 
should  not  grant  a  view  of  premises  where 


it  would  be  expensive,  or  cause  delay,  or 
where  a  view  would  serve  no  useful  pur- 
pose; but  this  affords  no  reason  for  a  rul- 
ing that  the  power  to  order  a  view  does 
not  exist  or  should  not  be  exercised  in 
any  case.  .  .  .  If  at  common  law,  in- 
dependent of  any  English  statute,  the 
Court  had  the  power  to  order  a  view  by 
jury  (as  we  think  it  plain  the  Court  had 
such  power),  as  we  have  adopted  the  com- 
mon law  in  this  State,  our  Courts  have  the 
same   power." 

Compare  the  authorities  cited  in  W.,  §§ 
1 162-1 166. 


No.  162.  RULES    OF    AUXILIARY    PROBATIVE    POLICY.  165 


PART   II. 

RULES  OF  AUXILIARY  PROBATIVE 
POLICY. 

^Nature  of  the  Rules:  "Assume  that  these  principles  of  Rele- 
vancy have  been  satisfied,  and  that  certain  facts,  so  far  as  concerns 
their  logical  bearing  and  probative  value,  have  passed  the  gaunt- 
■'■  let    and   are   evidentially    worthy    to   be   considered.      There   still 

may  remain  for  them  another  gauntlet  to  pass.  They  may  be  amenable 
to  certain  other  rules,  applicable  to  specific  classes  of  evidential  mate- 
rial, and  designed  to  strengthen  here  and  there  the  evidential  fabric 
and  to  secure  it  against  dangers  and  weaknesses  pointed  out  by  ex- 
perience. These  auxiliary  rules  have  nothing  to  do  with  Relevancy 
as  such,  i.  e.  regarded  as  the  minimum  requirement  for  admissibility. 
They  assume  Relevancy,  and  then  under  special  circumstances  apply  an 
extra  safeguard  designed  to  meet  special  dangers.  They  may  be  said 
to  be  artificial  as  distinguished  from  natural  rules ;  that  is,  they  do  not, 
as  do  the  rules  of  Relevancy,  simply  analyze  the  natural  process  of 
inference  and  belief;  but  they  contrive  a  specific  safeguard  to  be  ap- 
plied where  experience  has  shown  it  desirable. 

"These  rules  of  Auxiliary  Policy,  then,  form  a  set  of  rules  over  and 
above  and  independent  of  the  rules  depending  on  the  principles  of 
Relevancy.  They  are  distinguished  from  the  rules  of  Relevancy  (Part 
I)  in  resting  not  upon  an  analysis  of  the  process  of  inference,  but  upon 
expedients  designed  to  avoid  special  dangers  irrespective  of  the  nature 
of  the  inference  and  affecting  in  common  various  kinds  of  evidence 
resting  upon  various  inferences.  They  are  distinguished  from  the 
rules  of  Extrinsic  Policy  (Part  III)  in  having  for  their  purpose  the 
strengthening  of  the  mass  of  evidence  and  avoidance  of  probative 
dangers,  and  not  the  avoidance  of  collateral  disadvantages  unconnected 
with  the  object  of  securing  good  evidence.  They  include  the  most 
characteristic  features  of  the  Anglo-American  law  of  evidence ;  and  they 
are,  on  the  whole,  and  apart  from  minor  abuses,  justified  by  experi- 
ence as  a  valuable  part  of  the  system. 

"These  rules  seem  divisible  into  five  classes,  according  to  their  mode 
of  operation:  I,  Quantitative  (or  Synthetic);  IT.  Preferential:  III, 
Analytic;  IV,  Preventive  (or  Prophylactic),  and  V.  Simplificative. 

"There  is  no  one  term  traditionally  given  to  this  group  of  auxiliary 

I — Quoted  from  W.,  §1171. 


166  RULES  OF  AUXILIARY  PROBATIVE  POLICY,  No.  162. 

rules,  here  termed  rules  of  Auxiliary  Probative  Policy;  but  a  phrase 
has  long  been  used  to  cover  some  of  them, — the  'best  evidence'  prin- 
ciple." 


Professor  James  Bradley  Thayer,  Preliminary  Treatise  on  Evi- 
dence (1898),  pp.  489  ff. :  "The  phrase  ['best  evidence']  continued  to 
hold  a  great  place  throughout  the  eighteenth  century.  Chief 
Baron  Gilbert  introduced  the  expression  into  his  book  on  Evi- 
dence, and  recognized  the  rule  which  requires  of  a  party  the  best 
evidence  that  he  can  produce,  as  the  chief  rule  of  the  w^hole  subject. 
...  It  is  said  in  Gilbert's  book  that  'the  first,  therefore,  and  most  sig- 
nal rule  in  relation  to  evidence  is  this,  that  a  man  must  have  the  utmost 
evidence  the  nature  of  the  fact  is  capable  of,  .  .  .  The  true  meaning  of 
-the  rule  of  law  that  requires  the  greatest  evidence  that  the  nature  of 
ithe  thing  is  capable  of  is  this,  that  no  such  evidence  shall  be  brought 
which  ex  natiira  rei  supposes  still  a  greater  evidence  behind,  in  the 
parties'  own  possession  and  power.  Why  did  he  not  produce  the  better 
evidence  ?  he  asks ;  and  he  illustrates  by  what  was  always  the  stock 
example,  the  case  of  offering  'a  copy  of  a  deed  or  will  where  he  ought 
to  produce  the  original.'  .  .  .  The  courts  also  were  using  the  same  and 
even  more  emphatic  language.  In  1740,  Lord  Hardwicke  declared  that 
"the  rule  of  evidence  is  that  the  best  evidence  that  the  circumstances 
of  the  case  will  allow  must  be  given.  There  is  no  rule  of  evidence  to 
be  laid  down  in  this  court  but  a  reasonable  one,  such  as  the  nature  of 
the  thing  to  be  proved  will  admit  of.'  And  in  1792  Lord  Loughborough 
said  'that  all  common-law  courts  ought  to  proceed  upon  the  general 
rule,  namely,  the  best  evidence  that  the  nature  of  the  case  will  admit, 
I  perfectly  agree.'  But  the  great,  conspicuous  instance  in  which  this 
•doctrine  was  asserted  and  applied  was  in  the  famous  and  historical 
case  of  Omychund  v.  Barker,  in  1744,  growing  out  of  the  extension  of 
British  commerce  in  India,  where  the  question  was  on  receiving  in  an 
English  court  the  testimony  of  a  native  heathen  Hindoo,  taken  in 
India,  on  an  oath  conformed  to  the  usage  of  his  religion.  In  this 
case,  Willes,  J.,  resorted  to  this  rule,  and  Lord  Hardwicke,  sitting  as 
Chancellor,  with  great  emphasis  said:  'The  judge  and  sages  of  the  law 
have  laid  it  down  that  there  is  but  one  general  rule  of  evidence,  the 
best  that  the  nature  of  the  case  will  allow.'  .  .  . 

"An  old  principle  which  has  served  a  useful  purpose  for  the  century 
while  rules  of  evidence  had  been  forming  and  were  being  applied,  to  an 
extent  never  before  known,  while  the  practice  of  granting  new  trials 
for  the  jury's  disregard  of  evidence  had  been  developing,  and  judicial 
control  over  evidence  had  been  greatly  extended, — this  old  principle, 
this  convenient,  rough  test,  had  survived  its  usefulness.  A  ,crop  of 
specific  rules  and  exceptions  to  rules  had  been  sprouting,  and  harden- 
ing into  an  independent  growth.  It  had  become  perfectly  true  that 
in  many  cases  it  made  no  difference  whatever  whether  a  man  offered 


No.  164.  QUANTITATIVE    RULES.  167 

the  best  evidence  that  he  could  or  not, — the  best  evidence  that  the 
nature  of  the  case  admitted,  the  best  ex  natura  rei,  as  some  judges 
said,  or  the  best,  vebus  sic  stantibus,  as  others  said;  none  the  less  it 
wras,  in  many  cases,  rejected.  ...  As  regards  the  main  rule  of  the 
Best  Evidence,  in  its  general  application,  the  text-books  which  foUov^red 
Gilbert,  beginning  with  Peake  in  1801,  and  continuing  with  the  leading 
treatises  of  Phillips  in  1814,  Starkie  in  1824,  Greenleaf  in  1842,  Tay- 
lor in  1848,  and  Best  in  1849  ^^^  repeat  it.  But  it  is  accompanied  now 
with  so  many  explanations  and  qualifications  as  to  indicate  the  need 
of  some  simpler  and  truer  statement,  which  should  exclude  any  men- 
tion of  this  as  a  working  rule  of  our  system.  Indeed  it  would  probably 
have  dropped  naturally  out  of  use  long  ago,  if  it  had  not  come  to  be 
a  convenient,  short  description  of  the  rule  as  to  proving  the  contents 
of  a  writing.  Regarded  as  a  general  rule,  the  trouble  with  it  is  that  it 
is  not  true  to  the  facts  and  docs  not  hold  out  in  its  application ; 
and  in  so  far  as  it  does  apply,  it  is  unnecessary  and  uninstructive. 
It  is  roughly  descriptive  of  two  or  three  rules  which  have  their  own 
reasons  and  their  own  name  and  place,  and  are  well  enough  known 
without  it." 


TITLE  I. 

QUANTITATIVE    (OR   SYNTHETIC)    RULES. 

^General  Scope  of  Quantitative  (or  Synthetic)  Rules.  "Some 
of  the  auxiliary  rules  of  evidence  operate  by  requiring,  in  specific  sit- 
uations, that  a  certain  quantity  of  evidential  material  be  pro- 
vided.  This  or  that  piece  of  evidence,  admissible  in  itself  so  far 
as  all  the  foregoing  rules  are  concerned,  is  declared  to  be  insufficient 
unless  joined  sooner  or  later  with  other  pieces  of  evidence.  It  is  con- 
ditionally admissible ;  but  its  admissibility  will  prove  of  no  avail,  because, 
before  the  jury  is  allowed  to  retire  and  consider  it,  all  the  evidence 
on  that  point  will  be  rejected  unless  the  remaining  evidential  elements 
have  been  supplied.  Regarded  as  requiring  more  than  a  single  piece 
of  admissible  evidence,  these  rules  may  be  termed  Quantitative ;  re- 
garded as  requiring  various  pieces  of  evidence  to  be  associated  in 
presentation,  in  order  that  any  one  of  them  may  ultimately  be  of 
service,  these  rules  may  be  termed  Synthetic. 

"The  various  Quantitative  or  Synthetic  rules  may  best  be  classified 
for  practical  purposes  under  four  heads ;  the  first  and  second  con- 
cern testimonial  evidence  only;  the  third  concerns  all  kinds  of  evi- 
dence whatsoever,  as  well  as  all  material  forming  a  part  of  the  issue 
itself;  the  fourth  concerns   circumstantial  evidence  only. 

I — Quoted   from  W.,   §  2030. 


168  QUANTITATIVE   RULES.  No.  164. 

"First,  there  are  rules  as  to  the  Number  of  Witnesses  required;  the 
question  throughout  being  whether  a  single  witness  is  in  certain  sit- 
uations sufficient,  and  if  not,  what  other  evidence  will  suffice  there- 
with. Secondly,  there  are  rules  as  to  the  Kind  of  Witness  required; 
the  question  here  being  whether  for  certain  issues  a  certain  kind  of 
witness  must  always  be  present  among  the  general  mass  of  evidence ; 
practically,  the  only  kind  of  necessary  witness  recognized  in  our  law 
is  the  eye-witness.  Thirdly,  there  is  a  rule  of  Verbal  Completeness, 
i.  e.  that  the  whole  of  a  document  or  of  an  oral  utterance  must  be 
offered,  in  order  that  any  part  of  it  may  be  received.  Fourthly,  in  the 
Authentication  of  documents  (?.  c.  proving  their  genuineness,  or  due 
execution),  there  are  rules  which  declare  certain  kinds  of  circum- 
stantial evidence  to  be  insufficient  or  necessary. 


SUB-TITLE  I. 
NUMBER  OF  WITNESSES  REQUIRED, 

Roman  and  Canon  Law.  Digesta,  xxii,  5,  12,  Ulpian:  "Ubi  nu- 
merus  testium  non  adiicitur,  etiam  duo  sufficiunt;  pluralis  enim  elocutio 
duorum  numero  contenta  est" ;  Codex,  iv.  20,  4,  a.  d.  283,  "so- 
lam  testationem  prolatam,  nee  aliis  legitimis  adminiculis  causa 
approbata,  nullius  esse  momenti  certum  est";  ib.  p,  §  i,  a.  d.  334;  "Sim- 
ili  modo  sanximus  ut  unius  testimonium  nemo  judicum  in  quocunque 
causa  facile  patiatur  admitti.  Et  nunc  manifeste  sancimus  ut  unius 
omnino  testis  responsio  non  audiatur,  etiamsi  prseclare  curiae  honore 
proefulgeat." 

Corpus  Juris  Canonici,  Decret.  Greg.,  lib.  ii,  tit.  xx,  de  testibus,  c. 
^5  (ante  1400)  ;  "licet  quaedam  sint  causa,  quae  plures  quam  duos  exi- 
gant  testes,  nulla  est  tamen  causa,  quae  unius  tantum  testimonio,  quam- 
vis  legitim.o,  rational  biliter  terminetur." 

Gibson,,  Codex  Juris  Ecclesiastici  Anglicani  (1713),  p.  1054:  "In 
the  spiritual  court,  they  admit  no  proof  but  by  two  witnesses  at  least; 
in  the  temporal  court,  one  witness,  in  many  cases,  is  judged  sufficient."'^ 


Algernon  Sidney's  Apologia,  q  How.  St.  Tr.  qi6,  g2'/,  (1683).  Sid- 
ney, arguing  against  the  rule  then  obtaining  that  the  two  treason  wit- 
nesses might  testify  to  different  overt  acts:     "I  must  ever  insist 
■^^"      upon  the  law  of  God  given  by  the  hand  of  Moses,  confirmed  by 

2 — "The  canonists  erroneously  supposed  witness  did  not  suffice;  and  the  canon  law 
that  the  [orthodox]  Roman  jurists  under-  accepted  the  principle  with  the  more  re- 
stood  the  maxim  testis  iimis  testis  nujlus  spect  because  it  was  sanctioned  in  Deuter- 
in  the  sense  that  a  single  witness  did  not  onomy"  (Glasson,  Histoire  du  droit  et  des 
suffice  for  proof.  It  was  Constantine  who  institutions  de  la  France,  VI,  543;  1895). 
first  laid  down  the  arbitrary  rule  that  one 


No.  168.  REQUIRED  NUMBER  OF  WITNESSES.  1G9 

Christ  and  his  Apostles,  whereby  two  witnesses  are  necessarily  required 
to  every  word  and  every  matter.  .  .  .  The  reason  of  this  is  not  because 
two  or  more  evil  men  may  not  be  found, — as  appears  by  the  story  of 
Susanna;  but  because  it  is  hard  for  two  or  more  so  to  agree  upon  all 
circumstances  relating  unto  a  lye  as  not  to  thwart  one  another.  And 
whosoever  admits  of  two  testifying  several  things  done  or  said  several 
times  or  places  conducing — as  is  said  of  late — unto  the  same  ends, 
destroys  the  reason  of  that  law,  takes  away  all  the  defence  that  the 
most  innocent  men  can  have  for  their  lives,  and  opens  a  wide  gate 
for  perjury  by  taking  away  all  possibility  of  discovering  it."^ 


Sir  James  Stephen,  History  of  the  Criminal  Lazv,  I,  400  (1883)  : 
"The  opinion  of  the  time  [before  1700]  seems  to  have  been  that,  if  a 
man  came  and  swore  to  anvthing  whatever,  he  ought  to  be  be- 
■"■"*  lieved,  unless  he  was  directly  contradicted.  .  .  .  The  juries  seem 
to  have  thought  (as  they  very  often  still  think)  that  a  direct  unquali- 
fied oath  by  an  eye  or  ear-witness  has,  so  to  speak,  a  mechanical  value, 
and  must  be  believed  unless  it  is  distinctly  contradicted.  ...  If  the 
Court  regarded  a  man  as  a  'good'  (i.  e.  a  competent)  'witness,'  the  jury 
seem  to  have  believed  him  as  a  matter  of  course,  unless  he  was  con- 
tradicted ;  though  there  are  a  few  exceptions.  .  .  .  The  most  remark- 
able illustration  of  these  remarks  is  to  be  found  in  the  trial  of  the 
five  Jesuits.  .  .  .  [Chief  Justice  Scroggs  says]  :  'Mr.  Fenwick  says  to 
all  this,  "Here  is  nothing  against  us  but  talking  and  swearing."  But, 
for  that,  he  hath  been  told  (if  it  were  possible  for  him  to  learn)  that 
all  testimony  is  but  talking  and  swearing;  for  all  things,  all  men's 
lives  and  fortunes,  are  determined  by  an  oath,  and  an  oath  is  by  talk- 
ing, by  kissing  the  book,  and  calling  God  to  witness  to  the  truth  of 
what  is  said.'  .  .  .  Scroggs  was  right  as  to  what  it  [the  practice  of 
juries]  actually  was,  and  to  a  certain  extent  still  is.  It  is  true  that 
juries  do  attach  extraordinary  importance  to  the  dead  weight  of  an 
oath." 


W.  M.   Best,  Evidence,  §§597-60/    (1849):     "Those  who  take  the 
civil-law  view  contend  that  it  is  dangerous  to  allow  a  tribunal  to  act  on 
the  testimony  of  a  single  witness,  since  by  this  means  any  person, 
even  the  most  vile,  can  swear  away  the  liberty,  honor,  or  life  of 
any  one  else ;  they  insist  on  the  undoubted  truth,  that  the  chance  of  dis- 
crepancy  between    the    statements    of    two    false    witnesses,    when    ex- 

3 — Professor   J.    B.    Thayer,    Preliminary  ant's   proof   'fiiit  grcindr   than   the  demand- 

Trcatise  on  Evidence,  23,  (1898) :  "We  read  ant's,    it    was    awarded,'    etc.      If    we    take 

fin  an  English  case  of  cui  in  vita,  in  1308],  Fitzherbert's    account    to    be     accurate,     it 

that    they    were    at    issue    issint    cesti    qui  might  appear  that  the  twelve  men   on   each 

miculx    prove    niieulx    av,    and    the    tenant  side  cancelled    e.ich    other   and    left   a   total 

proves   by    sixteen    men,    etc.,    and    the   de-  of   four   to  the  credit   of  the   tenant,   a   re- 

mandant   by   twelve;    and   because   the   ten-  suit  which  left  his  proof  the  better." 


170  QUANTITATIVE   RULES.  No.  168. 

amined  apart,  is  a  powerful  protection  to  the  party  attacked.  .  .  .  Now 
we  are  by  no  means  prepared  to  deny  that  under  a  system  where  the 
decision  of  all  questions  of  law  and  fact  is  intrusted  to  a  single  judge, 
or  in  a  country  where  the  standard  of  truth  among  the  population  is 
very  low,  such  a  rule  may  be  a  valuable  security  against  the  abuse 
of  power  and  the  risk  of  perjury;  but  it  is  far  otherwise  where  a  high 
standard  of  truth  prevails,  and  facts  are  tried  by  a  jury  directed  and 
assisted  by  a  judge.  Add  to  this,  that  the  anomaly  of  acting  on  the 
testimony  of  one  person  is  more  apparent  than  real ;  for  the  decision 
does  not  proceed  solely  on  the  story  told  by  the  witness,  but  on  the 
moral  conviction  of  its  truth,  based  on  its  intrinsic  probability  and  his 
manner  of  giving  his  evidence.  And  there  are  few  cases  in  which  the 
decision  rests  even  on  these  circumstances  alone ;  they  are  usually 
corroborated  by  the  presumption  arising  from  the  absence  of  counter- 
proof  or  explanation,  and  in  criminal  cases  by  the  demeanour  of  the 
accused  while  on  his  trial.  .  .  .  Still,  however,  on  the  trial  of  cer- 
tain accusations,  which  are  peculiarly  liable  to  be  made  the  instru- 
ments of  persecution,  oppression,  or  fraud,  and  in  certain  cases  of 
preappointed  evidence  (where  parties  about  to  do  a  deliberate  act  may 
fairly  be  required  to  provide  themselves  with  any  reasonable  number 
of  witnesses,  in  order  to  give  facility  to  proof  of  that  act),  the  law 
may  with  advantage  relax  its  general  rule,  and  exact  a  higher  degree 
of  assurance  than  could  be  derived  from  the  testimony  of  a  single  wit- 
ness. Cases,  too,  must  now  and  then,  though  extremely  seldom,  occur, 
in  which  the  grossest  injustice  is  done  by  giving  credence  to  the  story 
of  a  single  witness.  .  .  .  On  the  other  hand,  however,  as  the  requir- 
ing a  plurality  of  witnesses  clearly  imposes  an  obstacle  to  the  adminis- 
tration of  justice,  especially  where  the  act  to  be  proved  is  of  a  casual 
nature, — above  all,  where,  being  in  violation  of  law,  as  much  clandes- 
tinity  as  possible  would  be  observed, — it  ought  not  to  be  required  with- 
out strong  and  just  reason.  Its  evils  are  these:  i.  It  offers  a  pre- 
mium to  crime  and  dishonesty;  by  telling  the  murderer  and  felon 
that  they  may  exercise  their  trade,  and  the  knave  that  he  may  practise 
his  fraud,  with  impimity,  in  the  presence  of  any  one  person;  and  the 
unprincipled  man  that  he  may  safely  violate  any  engagement,  however 
solemn,  contracted  under  similar  circumstances.  2.  Artificial  rules 
of  this  kind  hold  out  a  temptation  to  the  subordination  of  perjury,  in 
order  to  obtain  the  means  of  complying  with  them.  3.  They  pro- 
duce a  mischievous  effect  on  the  tribunal,  by  their  natural  tendency 
to  react  on  the  human  mind;  and  they  thus  create  a  system  of  me- 
chanical decision,  dependent  on  the  number  of  proofs,  and  regardless 
of  their  weight.  .  .  .  On  the  whole,  we  trust  our  readers  will  agree 
with  us  in  thinking  that  any  attempt  to  lay  down  a  universal  rule 
on  this  subject  which  shall  be  applicable  to  all  countries,  ages  and 
causes,  is  ridiculous;  and  that,  although  so  far  as  this  country  is  con- 
cerned, the  general  rule  of  the  common  law — that  judicial  decisions 
should  proceed  on  the  intelligence  and  credit,  and  not  on  the  number 


No.  169.  REQUIRED  NUMBER  OF  WITNESSES.  171 

of  the  witnesses  examined  or  documents  produced  in  evidence — is  a 
just  one,  there  are  cases  where,  from  motives  of  pubhc  policy,  it  has 
been   wisely   ordained  otherwise." 


CALLANAN  v.  SHAW  (1868). 

24  la.  441,  444. 

Beck.  J.,  disapproving  an  instruction  "that  no  important  fact  can  be 
proved  without  at  least  the  testimony  of  one  credible  and  unimpeached 
witness":    "It  is  impossible,   from  the  nature  of  things,  for  the 
^^^      law    to    provide    rules    which    shall    determine    the    quantity   or 
amount  of  evidence  necessary  to  establish  a  fact  in  judicial  proceed- 
ings.    There   can   be  devised   no    standard — no   unit   of   measurement, 
whereby  we  may  determine  just  what  measure  of  evidence  shall  be  re- 
quired to  prove  a  fact  in  issue.     To  say  that  one  credible  witness  is 
necessary,  is   a  very  unsatisfactory  and  indefinite  rule  indeed.     As  a 
matter  of   fact,   evidence   can  usually  be  brought  before   a   jury  only 
through  the  medium  of  human  testimony;  there  must,  of  necessity,  be  a 
witness,  or  one  standing  in  that  position,  through  whom  the  fact  can  be 
brought  to  the  mind  of  a  court  or  jury.  .  .  .  There  must  be,  then,  in 
most  cases,  to  establish  a  fact,  a  witness,  whether  that  fact  be  important 
or  unimportant.    But  this  rule  gives  no  measure  for  the  quantity  of  evi- 
dence, for  knowledge,  intelligence,  qualities  of  memory,  and  all  other  at- 
tributes that  make  up  ability,  together  with  those  moral  qualities  which 
constitute   credibility,   are  most  unequally  united   in  men,   so  that  one 
possessing   all   the   attributes   of   ability   and    credibility   in   the   highest 
degree,  and  so  known  to  the  tribunal  before  whom  he  testifies,  would, 
in    his    evidence,    outweigh    an    indefinite    number    of    witnesses    who 
possess  the  same  attributes  in  the  lowest  degree.      It  is  also  true,  that 
a  witness,  in  order  to  prove  a  fact  by  his  evidence,  must  be  credible — 
he  must   be   such   a  witness   as  will  be  entitled  to  receive  the  belief, 
the    faith    of    others.      But    here    again,    from    the    very   nature    of   the 
case,  there  are  indefinite  degrees  in  this  character  we  call  credibility. 
One  may  possess  it  in  the  highest  degree,  another  in  the  lowest.     It 
follows,    therefore,     that    when     evidence    is    weighed    to    determine 
whether   a    fact   has   been    proven   thereby,    all   the   qualities   going  to 
make    up   what   is    termed    ability    and    credibility    to    a    witness    must 
be   fully   considered   in  order  to   arrive   at  a  truth.     And  who  should 
so  weigh  and  consider  these  qualities?     Most  evidently  the  jury.     The 
Court   cannot  discharge   this  duty   for  them,  because  the  very  opinion 
which   they  may   form  upon  these  questions  of  ability  and  credibility 
in   truth   determines   their   finding.  ...  If  the   witness,    from   want  of 
intelligence,  or  from  any  other  cause,  is  incompetent  under  the  rules 
of  law,  the   Court  will   not   permit  him  to  testify,  but   when   the  evi- 
dence of  the  witness   is   before   the   jury,   all   questions  of   credibility 
are   for  them,  and  for  them   alone." 


172  QUANTITATIVE   RULES.  No.  17Q 

BOURDA   V.   JONES     (1901). 

no  Wis.  52,  55  A'',  IV.  6/1. 

Action  of  replevin  for  a  quantity  of  hotel  furniture.  The 
caus'e  was  tried  before  a  referee.  Appellant,  to  establish  his  cause  of 
action,  testified  that  all  the  property  described  in  the  complaint 
■*■*  belonged  to  him  and  that  the  various  articles  were  worth  the 
amounts  set  opposite  them  respectively  in  a  list  attached  to  the  com- 
plaint, the  agregate  being  $822;  that  he  fixed  the  value  as  indicated  be- 
cause it  was  the  property  cost.  The  referee  found  in  favor  of  the 
plaintiff,  that  he  was  entitled  to  recover  certain  specified  articles, 
not  including  a  large  part  of  the  property  claimed  and  much  of  the 
property  for  which  judgment  was  tendered.  The  value  of  the 
articles  found  to  belong  to  the  appellant,  at  the  rate  testified  to  by 
him,  was  over  $300.  The  value  found  by  the  Court  was  $50.  The 
only  evidence  of  damage  was  a  general  statement  by  plaintiff  that 
he  was  damaged  $200. 

Marshall,  J. :  "It  is  contended  that  the  evidence  of  value  on 
the  part  of  the  plaintiff  was  clear,  satisfactory  and  undisputed,  and 
that  there  was  no  evidence  whatever  to  warrant  the  court  in  find- 
ing the  value  of  $50  or  any  less  than  the  amount  indicated  by  the 
testimony  of  plaintiff.  We  are  unable  to  find  the  clear  and  satis- 
factory evidence  spoken  of.  Appellant  testified  that  the  property, 
though  it  had  been  in  use  in  a  hotel  from  one  to  five  years,  was 
worth  as  much  as  when  new,  and  his  values  were  put  upon  that 
basis.  The  evidence  was  clear,  to  be  sure,  but  clearly  outside  the 
realms  of  all  reasonable  probabilities.  It  has  often  been  said  that 
courts  and  juries  are  not  obliged  to  find  that  a  fact  exists,  and  cannot 
properly  do  so,  merely  because  there  is  evidence  to  that  effect  from 
the  mouth  of  a  witness  or  any  number  of  witnesses.  A  sworn 
statement,  which  is  obviously  false  when  viewed  in  the  light  of  reason 
and  common  sense  and  facts  within  common  knowledge,  cannot  be 
received  in  court  as  true  because  some  witness  willfully  or  ignorantly 
or  recklessly  so  testifies.  ...  It  is  not  infrequently  supposed  that  a 
sworn  statement  is  necessarily  proof,  and  that,  if  uncontradicted, 
it  establishes  the  fact  involved.  Such  is  by  no  means  the  law. 
Testimony,  regardless  of  the  amount  of  it,  which  is  contrary  to 
all  reasonable  probabilities  or  conceded  facts — testimony  which  no 
sensible  man  can  believe — goes  for  nothing;  while  the  evidence  of 
a  single  witness  to  a  fact,  there  being  nothing  to  throw  discredit 
thereon,  cannot  be  disregarded.  If  it  is  the  only  evidence  in  respect 
to  the  fact  involved,  it  is  ordinarily  deemed  sufficient  to  establish 
such  fact.  .  .  .  W^here  the  value  in  controversy  relates  to  an  article 
the  value  of  which  is  within  common  knowledge,  the  fact  may  be 
found  by  court  or  jury  without  direct  testimony  thereto,  the  article 
being  sufficiently   described  by   evidence   to   enable  one  to    apply   to  it 


No.  172.  REQUIRED  NUMBER  OF  WITNESSES.  173 

common  knowledge  of  value.  At  the  same  time  evidence  of  wit- 
nesses, though  uncontradicted,  placing  the  value  of  an  article  beyond 
all  reason,  should  be  entirely  ignored.  .  .  .  The  testimony  of  appel- 
lant that  his  property  was  worth  as  much  as  when  new,  did  not 
prove  or  tend  to  prove  the  true  value.  So  the  referee,  without 
any  accurate  descrijnion  of  the  property  or  its  condition,  was  left 
to  guess  at  the  value  thereof.  The  burden  of  proof  was  on  plain- 
tiff. ...  As  we  view  it,  there  was  practically  a  failure  of  proof 
on  the  subject  of  value." 


Statutes.  England :  1552,  St.  5  &-  6  Edw.  VI,  c.  11,  §  12: 
No  person  is  to  be  indicted  or  arraigned  for  treason,  "unless  the 
same  offender  or  offenders  be  thereof  accused  by  two  lawful  ac- 
■*•'■'■  cusers,  which  said  accusers  at  the  time  of  the  arraignment  of  the 
party  so  accused,  if  they  be  then  living,  shall  be  brought  in  person  be- 
fore the  party  so  accused  and  avow  and  maintain  what  they  have  to 
say  against  the  said  party  .  .  .  unless  the  said  party  arraigned  shall 
willingly  without  violence  confess  the  same."  i6g6,  St.  7  W.  Ill,  c. 
J,  §<?;  No  person  shall  be  indicted  or  tried  for  high  treason  work- 
ing corruption  of  blood,  or  misprision,  "but  by  and  upon  the  oaths 
and  testimony  of  two  lawful  witnesses,  either  both  of  them  to  the 
same  overt  act,  or  one  of  them  to  the  one  and  the  other  of  them 
to  another  overt  act  of  the  same  treason,"  unless  the  accused  "shall 
willingly,  without  violence,  in  open  court  confess  the  same,  or  stand 
mute  or  refuse  to  plead";  c.  7:  the  foregoing  provision  is  not  to 
extend   to   counterfeiting  the   coin. 

Constitution  of  the  United  States  (178/),  Art.  Ill,  §5.-  "No 
person  shall  be  convicted  of  treason  unless  on  the  testimony  of  two 
witnesses   to   the   same   overt   act,   or   on   confession   in   open   court."^ 


R.  v.  MUSCOT     (1714). 

10    Mod.     IQ2. 

Parker,   C.   J. :     "There   is   this   difference  between   a   prosecution 

for  perjury  and  a  bare  contest  about  property,  that  in  the  latter  case 

the    matter    stands    indifferent,    and    therefore    a    credible    and 

^'         probable  witness  shall  turn  the  scale  in   favor  of  either  party. 

But    in    the    former,    presumption    is    ever    to    be    made    in    favor    of 

I — Madison's    Journal     of     the     Federal  said    on    both    sides.      Treason    may    some- 

Convention,     Scott's      ed.,      II,      564,      566  times  be  practised  in  such  a  manner  as  to 

(1787):      "It    was    then    moved    to    insert,  render    proof   extremely    difficult, — as    in    a 

after    'two    witnesses'    the    words    'to    the  traitorous   correspondence    with    an   enemy.' 

same    overt    act.'      Dr.     Franklin      'wished  On  the  question,"  the  vote  was  8  to  3  for 

this    amendment    to    take    place.      Prosecu-  the   amendment. 

tions    for    treason    were    generally    virulent,  Compare   the   authorities   cited    in    W.,    §§ 

and  perjury  too  easily  made  use  of  against  2036-2034. 
innocence.'      Mr.    Wilson:      'Much    may   be 


174  QUANTITATIVE   RULES.  No.  172. 

innocence,  and  the  oath  of  the  party  will  have  a  regard  paid  to  it 
until  disproved.  Therefore,  to  convict  a  man  of  perjury,  a  probable, 
a  credible  w^itness  is  not  enough;  but  it  must  be  a  strong  and  clear 
evidence,  and  more  numerous  than  the  evidence  given  for  the  de^ 
fendant;  for  else  there  is  only  oath  against  oath." 


W.  M.  Best,  Evidence,  %^  605-606  (1849):  "The  reason  usually 
assigned  in  our  books  for  requiring  two  witnesses  in  perjury — viz., 
that  the  evidence  of  the  accused  having  been  given  on  oath, 
*  when  nothing  beyond  the  testimony  of  a  single  witness  is 
produced  to  falsify  it,  there  is  nothing  but  oath  against  oath — is 
by  no  means  satisfactory.  All  oaths  are  not  of  equal  value;  for  the 
credibility  of  the  statement  of  a  witness  depends  quite  as  much 
on  his  deportment  when  giving  it,  and  the  probability  of  his  story, 
as  on  the  fact  of  it  being  deposed  to  on  oath;  and,  as  is  justly 
remarked  by  Sir  W.  D.  Evans,  the  motives  for  falsehood  in  the 
original  testimony  or  deposition  may  be  much  stronger  with  refer- 
ence to  the  event  on  the  one  side  than  the  motives  for  a  false  accu- 
sation of  perjury  on  the  other.  .  .  .  The  foundations  of  this  rule, 
we  apprehend,  lie  much  deeper.  The  legislator  dealing  with  the 
offense  of  perjury  has  to  determine  the  relative  weight  of  con- 
flicting duties.  Measured  merely  by  its  religious  or  moral  enormity, 
perjury,  always  a  grievous,  would  in  many  cases  be  the  greatest 
of  crimes,  and  as  such  be  deserving  of  the  severest  punishment  which 
the  law  could  inflict.  But  when  we  consider  the  very  peculiar 
nature  of  this  offence,  and  that  every  person  who  appears  as  a  wit- 
ness in  a  court  of  justice  is  liable  to  be  accused  of  it  by  those 
against  whom  his  evidence  tells,  who  are  frequently  the  basest 
and  most  unprincipled  of  mankind ;  and  when  we  remember  how 
powerless  are  the  best  rules  of  municipal  law  with  the  co-operation 
of  society  to  enforce  them, — we  shall  see  that  the  obligation  of 
protecting  witnesses  from  oppression,  or  annoyance,  by  charges,  or 
threats  of  charges  of  having  borne  false  testimony,  is  far  para- 
mount to  that  of  giving  even  perjury  its  deserts."^ 


PEMBER  V.   MATHERS     (1778). 

/  Bro.   Ch.  C.  52. 

Thurlow,  L.  C.  :    "I  take  the  rule  to  be  that,  where  the  defendant 
in    express    terms    negatives   the    allegations    of   the   bill,    and   the   evi- 
dence is  only  one  person  affirming  what  has  been  so  negatived, 
'*      there  the  Court  will  neither  make  a  decree  nor  send  it  to  a  trial 
at   law.  .  .  .  The   original    rule   stands    on    great   authorities ;    so   does 
the   manner   of  liquidating  it;   I   do   not   see   great  reason  in   either." 

2 — Compare   the  authorities  cited  in   W.,  §§  2040-2043. 


No.  178.  REQUIRED  NUMBER  OF  WITNESSES.  175 


R.  N.  Gresley,  Evidence  in  Equity,  4,  (1837)  •  "Where  a  ma- 
terial fact  was  directly  put  in  issue  by  the  answer,  the  Courts  of 
equity  followed  the  maxim  of  the  civil  law,  responsio  unius 
-*•**'  non  omnino  audiatur,  and  required  the  evidence  of  two  wit- 
nesses as  the  foundation  for  a  decree.  But  of  late  years  the  rule 
has  been  referred  more  closely  to  the  equitable  principle  on  which 
it  is  grounded,  namely,  the  equal  right  to  credit  which  a  defendant 
may  claim  when  his  oath,  'positively,  clearly,  and  precisely  given,' 
and  consequently  subjecting  him  to  the  penalties  of  perjury,  is 
opposed  to  the  oath  of  a   single  witness." 


ATTWOOD  V.  SMALL    (1838). 

6  CI.  &  F.  2^2,  2Qy. 

Lord  Brougham  :     "It  is  said  that  you  must  have  recourse  to  the 

answer  .  .  .  [because  of  a  rule  that  if  the  defendant  denies  on  oath] 

you   must   have   more   than   one   witness,   or   some   circumstances 
1  7B 
^'         more  than  one  witness,  in  order  to  rebut  the  denial.     But  I  take 

it  that  the  denial  is  not  read  as  evidence  in  the  cause,  and  the  Court 

does    not    use    it    as    evidence ;    it    is    rather   considered    as    a    general 

denial  in  the  nature  of  a  plea  of  not  guilty, — a  sort  of  general  issue 

which  puts  the  plaintiff  to  the  proof  in  a  particular  way."^ 


Swinburne,  J.,  Wills,  pt.  I.,  §p  (1640):  "[By  the  Roman  law  a 
will]  must  be  proved  forsooth  by  seven  witnesses.  Wherefore  with 
good  reason  was  this  excesse  reformed  first  by  the  ecclesiastical! 
'  law,  which  did  reduce  the  number  of  seven  witnesses  to  three 
(the  parochiall  minister  being  one)  and  in  some  cases  two;  and  then 
by  the  general  [ecclesiasticall]  custom  of  this  realm,  which  distinctly 
requireth  no  more  witnesses  than  two,  so  they  be  free  from  any 
just  cause  of  exception.  ...  So  we  are  no  further  tyed  than  to 
the  observation  of  those  requisites  that  be  necessary  Jure  gentium, 
which  requireth  but  two  witnesses.  ...  [A  man,]  if  he  will,  he  may 
procure  the  witnesses  to  subscribe  their  names  to  the  testament;  .  .  . 
but  no  man  is  tyed  to  the  observation  of  these  cautels." 


Statute  of  Frauds  and  Perjuries   (1678),  2p  Car.  II.  c.  3,  §5.' 

devises   of   lands    or   tenements    "shall    be    attested    and   subscribed    in 

the  presence  of    the    said    devisor    by    three    or    four    credible 

witnesses,    or    else    they    shall    be    utterly    void    and    of    none 

effect."* 

3 — Compare  the   authorities  cited   in   W.,  that    were    present   at   the   making    thereof; 

§   2047.  nor    unless    it    be    proved    that    the    testator 

4 — Compare    this    provision    in  the    same  at    the    time    of    pronouncing    the    same    did 

statute:      St.    29    Car.    II.    c.    3,  §     19;    no  bid    the    persons    present    or    some    of    them 

nuncupative    will    of    an    estate  exceeding  bear  witness   that  such   was   his  will,  or  to 

£30  is  to  be  valid     "that  is  not  proved  by  that   effect." 

the    oaths    of    three    witnesses    at  the    least, 


176  QUANTITATIVE   RULES.  No.  179. 

DOE  V.  HINDSON  (1765). 
I  Day  41,  4Q. 
Pratt^  L,  C.  J.  (Lord  Camden)  :  "Here  I  must  premise  one  ob- 
servation, that  there  is  a  great  difference  between  the  method  of 
proving  a  fact  in  a  court  of  justice,  and  the  attestation  of  that 
^'  fact  at  the  time  it  happens.  These  two  things,  I  suspect,  have 
been  confounded ;  whereas  it  ought  always  to  be  remembered  that 
the  great  inquiry  upon  this  question  is,  how  the  will  ought  to  be 
attested,  and  not  how  it  ought  to  be  proved.  The  new  thing  intro- 
duced by  the  Statute  [of  Frauds]  is  the  attestation;  the  method  of 
proving  this  attestation  stands  as  it  did  upon  common-law  prin- 
ciples. Thus,  for  instance,  one  witness  is  sufficient  to  prove  what 
all  three  have  attested;  and  though  that  witness  must  be  a  sub- 
scriber, yet  that  is  owing  to  the  general  common-law  rule  that  where 
a  witness  hath  subscribed  an  instrument,  he  must  always  be  pro- 
duced because  it  is  the  best  evidence.  This  we  see  in  common  experi- 
ence, for  after  the  first  witness  has  been  examined,  the  will  is  always 
read."^ 


SUB-TITLE  II. 

KINDS  OF   EVIDENCE  REQUIRING   CORROBORATION. 

R.  v.  ATWOOD  &  ROBINS    (1788). 
/  Leach  Cr.  L.  4th  ed.  464. 

Robbery  on  the  highway.  The  prosecutor  deposed.  That  on  the 
day  laid  in  the  indictment  he  was  met  by  three  men,  who,  after 
using  him  with  violence,  and'  threatening  his  life,  demanded 
•^^^  his  money;  and  that  in  consequence  of  their  threats  he  de- 
livered to  them  the  property  mentioned  in  the  indictment;  but  that 
it  was  so  dark  at  the  time,  he  could  not  swear  that  the  prisoners 
at  the  bar  were  two  of  the  men  who  robbed  him.  An  accomplice 
was,  under  this  circumstance,  admitted  to  give  his  testimony;  and 
he  deposed,  that  he  and  the  two  prisoners  at  the  bar  had,  in  the 
company  of  each  other,  committed  this  robbery.  The  jury,  upon 
the  evidence  of  these  two  witnesses,  found  the  prisoners  guilty;  but 
the  judgment  was  respited,  and  the  case  submitted  to  the  considera- 
tion of  the  twelve  judges. 

BuLLER,  J. :     "I  thought  it  proper  to  refer  your  case  to  the  con- 
sideration   of    the    twelve    Judges.      My    doubt    was    whether    the    evi- 

5 — Compare   the   authorities   cited    in   W.,        to    be    called,    as    required    by   the    rule    for 
§§    2048,    2049.  attesting    -aitnesses,    see    post,    Nos.    263-4. 

For    the    number    of    attesting    witnesses 


No.  182.  CORROBORATION  REQUIRED.  177 

dence  of  an  accomplice,  unconfirmed  by  any  other  evidence  that 
could  materially  affect  the  case,  was  sufficient  to  warrant  a  convic- 
tion. And  the  judges  are  unanimously  of  opinion  that  an  accomplice 
alone  is  a  competent  witness,  and  that  if  the  jury,  weighing  the 
probability  of  his  testimony,  think  him  worthy  of  belief,  a  conviction 
supported  by  such  testimony  alone  is  perfectly  legal.  The  distinc- 
tion between  the  competency  and  credit  of  a  witness  has  long  been 
settled.  If  a  question  be  made  respecting  his  competency,  the  decision 
of  that  question  is  the  exclusive  province  of  the  judge;  but  if  the 
ground  of  objection  go  to  his  credit  only,  his  testimony  must  be 
received  and  left  to  the  jury,  under  such  directions  and  observations 
from  the  Court  as  the  circumstances  of  the  case  may  require,  to 
say  whether  they  think  it  sufficiently  credible  to  guide  their  decision 
in  the  case." 


REGINA  v.  FARLER   (1837). 

8  C.  &  P.  106. 

Abinger,  L.  C.  B.  :  "It  is  a  practice  which  deserves  all  the  rever- 
ence of  law,  that  judges  have  uniformly  told  juries  that  they  ought 
not  to  pay  any  respect  to  the  testimony  of  an  accomplice  unless 
^*  the  accomplice  is  corroborated  in  some  material  particular. 
.  .  .  The  danger  is  that  when  a  man  is  fixed,  and  knows  that  his 
own  guilt  is  detected,  he  purchases  immunity  by  falsely  accusing 
others." 


Chief  Baron  Joy,  Evidence  of  Accomplices,  4,  (1844)  :  "How  the 
practice  which  at  present  prevails  could  ever  have  grown  into 
a  general  regulation  must  be  a  matter  of  surprise  to  every 
person  who  considers  its  nature,  or  inquires  into  the  founda- 
tion on  which  it  rests.  Why  the  case  of  an  accomplice  should 
require  a  particular  rule  for  itself;  why  it  should  ncrt,  like  that  of 
every  other  witness  of  whose  credit  there  is  an  impeachment,  be 
left  to  the  unfettered  discretion  of  the  judge,  to  deal  with  it  as  the 
circumstances  of  each  particular  case  may  require,  it  seems  difficult 
to  explain.  Why  a  fixed,  unvarying  rule  should  be  applied  to  a 
subject  which  admits  of  such  endless  variety  as  the  credit  of  wit- 
nesses, seems  hardly  reconcilable  to  the  principles  of  reason.  But, 
that  a  judge  should  come  prepared  to  reject  altogether  the  testimony 
of  a  competent  witness  as  unworthy  of  credit,  before  he  had  ever 
seen  that  witness ;  before  he  had  observed  his  look,  his  manner,  his 
demeanour;  before  he  had  had  an  opportunity  of  considering  the 
consistency  and  probability  of  his  story;  before  he  had  known  the 
nature  of  the  crime  of  which  he  was  to  accuse  himself,  or  the 
temptation    which    led    to    it,    or    the    contrition    with    which    it    was 


178  QrANTITATIVE   RULES,  No.  182, 

followed; — that  a  judge,  I  say,  should  come  prepared  beforehand,  to 
advise  the  jury  to  reject  without  consideration  such  evidence,  even 
though  judge  and  jury  should  be  perfectly  convinced  of  its  truths 
seems  to  be  a  violation  of  the  principles  of  common  sense,  the  dic- 
tates of  morality,  and  the  sanctity  of  a  juror's  oath.  .  .  .  Nor,  if  we 
inquire  into  the  foundation  of  the  rule,  shall  we  find  in  it  anything 
certain  or  fixed,  such  as  ought  to  be  the  basis  of  an  uniform  and 
never  varying  rule.  We  shall  be  told  by  one  that  it  is  the  moral  guilt 
of  the  witness  which  produces  this,  as  it  were,  practical  incompetency; 
whilst  another  ascribes  it  to  the  desire  which  he  has  to  purchase 
impunity  for  his  own  transgression.  If  it  be  the  moral  guilt  of  the 
witness  that  affects  his  credit,  the  degree  to  which  his  credit  is 
affected  must  depend  upon  and  vary  with  the  magnitude  of  the 
crime  of  which  each  witness  confesses  himself  to  be  guilty.  Crimes 
are  of  every  different  shade,  from  the  most  venial  petit  larceny  to 
the  most  atrocious  murder.  Yet  to  all  the  rule  equally  applies.  The 
witness  who  on  cross-examination  confesses  that  he  has  been  engaged 
in  many  murders,  appears  more  stained  with  guilt  than  he  who 
comes  forward  as  an  accomplice  in  the  petit  larceny  then  under 
trial;  yet  the  former  is  without  the  scope  of  the  rule,  while  the 
latter  comes  entirely  within  the  sphere  of  its  application.  The  tes- 
timony of  the  same  witness  may  in  one  trial  be  absolutely  rejected 
under  the  operation  of  the  rule,  and  in  the  very  next  trial,  in  the 
course  of  the  same  day,  it  may  be  permitted  to  go  the  jury;  yet 
his  moral  character  has  undergone  no  change  in  the  interval.  Moral 
guilt,  then,  can  never  afford  any  rational  foundation  for  a  rule  which 
applies  indiscriminately  to  the'  highest  and  to  the  lowest  degrees  of 
that  guilt.  But  an  accomplice,  we  are  told,  comes  forward  to  save 
himself,  and  his  credit  is  affected  by  the  temptation  which  this  holds 
out  to  forswear  himself.  But  who  is  it  that  establishes  his  guilt? 
he  himself — he  is  his  own  accuser ;  and  the  proof,  and  often  the  only 
proof  which  can  be  had,  of  his  guilt,  comes  from  his  own  lips.  He 
is  generally  admitted  as  a  witness  from  the  necessity  of  the  thing, 
and  from  the  impossibility  without  him  of  bringing  any  of  the  offenders 
to  justice.  If  this  be  the  foundation  of  the  rule,  it  rests  on  a 
drifting  sand.  The  temptation  to  commit  perjury  which  influences 
his  credit  must  be  proportioned  to  the  punishment  annexed  to  the 
crime  of  which  the  witness  confesses  himself  guilty.  But  the  rule 
applies  with  equal  force  to  the  accomplice  who  may  apprehend  but 
a  month's  imprisonment  for  the  most  trifling  petit  la^ceny,  and  to 
him  who  may  reasonably  dread  death  for  an  atrocious  murder.  Uni- 
versal and  undiscriminating,  the  rule  levels  all  distinctions.  Where 
then  is  the  necessity  for,  or  good  sense  in,  such  a  rule?  Why  not 
leave  the  credit  of  the  accomplice  to  be  dealt  with  by  the  jury,  sub- 
ject to  such  observations  upon  it  from  the  judge  as  each  particular 
case  may  suggest?"^ 

I — Compare  the  authorities  cited   in  W.,  §§  2056-2060. 


No.  184.  CORROBORATION    REQUIRED.  179 

REX  V.  READING   (1734). 
Lee  temp.  Hardewicke  yg. 

Order  of  filiation  of  a  child  born  of  a  married  woman ;  it  was 
objected,  "that  the  wife  is  the  only  evidence  [offered],  and  that  she 
is  not  a  competent  witness  in  law  to  exonerate  her  husband 
^^^      of  the  charge  and  burthen  of  this  child." 

Hardwicke^  L.  C.  J.:  "[The  wife]  may  be  a  competent  witness 
to  prove  the  criminal  conversation  between  the  defendant  and  her- 
self, by  reason  of  the  nature  of  the  fact,  which  is  usually  carried  on 
with  such  secrecy  that  it  will  admit  of  no  other  evidence ;  .  .  .  but 
then  in  the  present  case  it  is  gone  further,  for  the  wife  is  [here] 
the  only  evidence  to  prove  the  absence  and  want  of  access  of  her 
husband,  whereas  this  might  be  made  to  appear  by  other  witnesses. 
...  It  must  be  a  very  dangerous  consequence  to  lay  it  down  in  gen- 
eral that  a  wife  should  be  a  sufficient  sole  evidence  to  bastardize  her 
child  and  to  discharge  her  husband  of  the  burthen  of  his  mainte- 
nance ;  but  the  opinion  the  Court  is  of  at  present  will  not  be  a  prece- 
dent to  determine  any  other  case  wherein  there  are  other  sufficient 
witnesses  as  to  the  want  of  access ;  but  the  foundation  that  is  now 
gone  upon  is  the  wife's  being  a  sole  witness." 


GOODRIGHT    dcm.    STEVENS    v.    MOSS     (1777). 

Cozsjper   592. 

The  lessor  of  the  plaintiff  claimed  to  be  entitled  to  the  premises 
for  which  the  ejectment  was  brought,  as  cousin  and  heir-at-law  of 
Ann  Stevens,  who  died  seised.  And  the  only  question  in  the 
■*-^*  cause  was.  whether  the  lessor  of  the  plaintiff  was  the  legiti- 
mate son  of  Francis  and  Mary  Stevens,  or  was  born  of  Mary  before 
their  marriage.  For  the  plaintiff  the  register  of  the  marriage  of 
Francis  Stevens  and  Mary  Packer,  dated  November  2d,  1703,  and 
the  register  of  the  birth  of  the  lessor  of  the  plaintiff,  in  the  follow- 
ing words,  "Christenings,  1704,  Samuel,  son  of  Francis  and  Mary 
Stevens,  baptized  July  3d,"  were  produced.  It  was  insisted,  on  the 
part  of  the  defendant,  "that  the  lessor  of  the  plaintiff  was  born  and 
privately  baptized  before  the  marriage,  and  that  there  was  a  public 
baptism  after  the  marriage,"  which  accounted  for  the  register.  They 
first  offered  witnesses  to  general  declarations  by  the  father  and 
mother,  that  Samuel,  the  lessor  of  the  plaintiff,  was  born  before 
marriage,  which  evidence  Mr.  Baron  Eyre  was  of  opinion  to  reject. 
It  was  argued  for  the  plaintiff  that  "though  the  testimony  of  parents 
in  their  lifetime  of  their  declarations  after  their  decease  might  be 
admissible  in  cases  where  proof  of  the  marriage  was  presumptive 
only,  as  by  cohabitation  or  general  reputation,  yet  neither  their  dec- 
larations   nor    their    personal    testimony     [of    birth    before    marriage] 


180  QUANTITATIVE   RULES.  No.  184. 

could  be  admitted  to  bastardize  their  issue  where  as  in  this  case 
the  fact  of  the  marriage  was  actually  proved  [by  the  register-entry]." 
Mansfield^  L.  C.  J. :  "All  the  cases  cited  are  cases  relative  to 
children  born  in  wedlock;  and  the  law  of  England  is  clear  that  the 
•declarations  [or  testimony  on  the  stand]  of  a  father  or  mother  cannot 
be  admitted  to  bastardize  the  issue  born  after  marriage.  ...  As  to 
the  time  of  the  birth,  the  father  and  mother  are  the  most  proper 
witnesses  to  prove  it.  But  it  is  a  rule  founded  in  decency,  morality, 
and  policy,  that  they  shall  not  be  permitted  to  say  after  marriage 
that  they  have  had  no  connection,  and  therefore  'that  the  offspring 
is  spurious;  more  especially  the  mother,  who  is  the  offending  party. "^ 


Canon  105,  at  the  Convocation  of  Canterbury  (1603),  Wolcott's 
''Constitutions  and  Canons,  p.  145:  "Forasmuch  as  matrimonial  causes 
have  been  always  reckoned  and  reputed  among  the  weightiest, 
^^"  and  therefore  require  the  greater  caution  when  they  come  to 
be  handled  and  debated  in  judgment,  especially  in  causes  wherein 
matrimony  having  been  in  the  church  duly  solemnized  is  required 
upon  any  suggestion  or  pretext  whatsoever  to  be  dissolved  or  annulled, 
We  do  strictly  charge  and  enjoin  that,  in  all  proceedings  to  divorce 
and  nullities  of  matrimony,  good  circumspection  and  advice  be  used, 
and  that  the  truth  may  (as  far  as  it  is  possible)  be  sifted  out  by 
deposition  of  witnesses  and  other  lawful  proofs  and  evictions,  and 
that  credit  be  not  given  to  the  sole  confession  of  the  parties  them- 
selves, howsoever  taken  upon  oath  either  within  or  without  the 
court." 


Thomas  Oughton,  Ordo  Judiciorum,  tit.  213,  p.  316  (1738): 
"Since  in  our  days  (by  the  Devil's  persuasion)  a  great  many  divorces 
are  scrught  on  the  ground  of  adultery,  in  order  by  that  pre- 
-^^"  text  that  the  divorced  parties  may  be  able  to  proceed  to  another 
marriage,  and  since  (in  order  thus  the  more  easily  to  obtain  a 
•divorce)  the  wife  is  used  to  confess  the  adultery  of  which  she  is  by 
collusion  charged,  though  in  truth  none  has  been  committed;  and 
sometimes  also  the  husband  (that  he  may  take  a  new  wife)  induces 
the  wife  by  threats,  blows,  blandishments,  or  some  other  unlawful 
mode,  to  confess  the  adultery,  though  she  had  committed  none,  There- 
fore, to  avoid  and  obviate  this  craft  and  fraud,  the  judge,  in  this 
class  of  cases,  is  accustomed  to  search  out  the  woman's  mind  in 
private  (all  other  persons,  especially  the  husband,  being  withdrawn), 
and  to  examine  her  carefully  as  to  the  truth  and  as  to  the  motive 
for  such  a  confession,  and  by  every  lawful  means  and  mode  to 
elicit  the  truth ;  and  if  he  finds  craft  and  fraud  of  this  sort,  or  even 

2 — Compare  the   authorities  cited   in  W.,    §    2063. 


No.  188.  CORROBORATION    REQUIRED.  181 

some  probable  suspicion  of  it,  he  is  accustomed  to  refuse  a  judg- 
ment of  divorce,  unless  the  petitioner  for  the  divorce  shall  have 
proved  the  alleged  adultery  by  w^itnesses,  or  at  least  by  vehement 
presumptive  circumstances  and  public  repute,  or  otherwise  informed 
the  judge's  conscience  (because  the  alleged  crime  may  be  true),  from 
which  the  judge  may  believe  that  the  woman's  confession  of  the 
adultery  has  not  proceeded  from  craft  or  fraud. "^ 


BERGEN  v.  PEOPLE    (1856). 

17  III.  426. 

Incest.     Skinner,  J.:     "The  court  refused  to  instruct  the  jury  on 

the   part   of  the   defendants,   that  he  could   not   be   convicted  upon   his 

mere  confessions,  made  out  of  court,  uncorroborated  by  facts 
1 07  '  •' 

or  circumstances.  The  elementary  books  generally  state  the 
law  to  be,  that  confessions  alone  are  sufficient  to  convict;  yet  it 
is  believed  no  court  would  permit  a  conviction  for  felony  upon 
mere  confessions,  made  out  of  court,  without  some  proof  that  a  crime 
had  been  committed,  or  of  circumstances  corroborating  and  fortifying 
the  confession.  .  .  .  Proof  of  any  number  of  these  facts  and  cir- 
cumstances consistent  with  the  truth  of  the  confession,  or  which 
the  confession  has  led  to  the  discovery  of,  and  which  would  not 
probably  have  existed  had  not  the  crime  been  committed,  necessarily  cor- 
roborate it.  .  .  .  The  corroborating  fact  or  facts  in  proof  need  not 
necessarily,  independent  of  the  confession,  tend  to  prove  the  corpus 
delicti.  ...  In  this  case,  from  the  nature  of  the  crime,  proof  of  the 
corpus  delicti,  independently  of  the  confession,  except  by  the  guilty 
participant,  and,  in  fact,  without  proving  also  the  defendant  guilty  of 
the  crime  charged,  would  be  impossible.  There  is  necessarily  no 
victim — nothing  visible  or  tangible,  the  subject  or  consequence  of 
the  wrong,  capable  of  ascertainment  and  of  proof.  To  require  it 
would  be  to  require,  independently  of  the  confession,  proof  of  de- 
fendant's guilt.  The  corroborative  evidence,  therefore,  must  consist 
of  facts  or  circumstances,  appearing  in  evidence,  independent  of  the 
confession,  and  consistent  therewith,  tending  to  confirm  and  strengthen 
the  confession.  Without  proof,  aliunde,  mere  confessions  that  the 
crime  charged  has  been  committed  by  some  one,  or  of  some  fact  or 
circumstance  confirmatory  of  the  confession,  a  party  accused  of  crime 
cannot  be  found  guilty,  unless  such  confession  be  judicial  or  in  open 
court.     The  instruction  should  therefore  have  been  given."* 


Sir   Matthew   Hale,   Pleas   of   the   Crozvn,   II,   2go    {ante    1680)  : 

"I   would  never   convict  any  person   for   stealing  the  goods   cujusdam 

ignoti   merely   because   he   would   not   give   an   account   how   he 

came   by    them,    unless    there    was    due   proof    made   that    felony 

3 — Compare  the   authorities   cited   in  W.,  4 — Compare   the  authorities  cited  in   W., 

S^  2067-2069.  §§  2070,    2071. 


182  QUANTITATIVE   RULES.  No.  188. 

was  committed  of  these  goods.  I  would  never  convict  any  person 
of  murder  or  manslaughter,  unless  the  fact  was  proved  to  be  done, 
or  at  least  the  body  found  dead, — for  the  sake  of  two  cases,  one 
mentioned  in  my  lord  Coke's  P.  C.  cap.  104,  p.  232,  a  Warwickshire 
case,  another  that  happened  in  my  remembrance  in  Staffordshire." 


REGINA  V.  BURTON   (1854). 

Dears.  Cr.  C.  282. 

The  defendant  was  found,  with  pepper  in  his  pocket,  coming  out 
of  a  warehouse  containing  a  large  quantity  of  similar  pepper,  both 
loose  and  in  bags ;  it  was  impossible  to  ascertain  directly 
"^  whether  there  was  any  shortage  in  the  warehouse  amount.  Mr. 
Rihton,  of  counsel :  "It  is  submitted  that  the  corpus  delicti  must  be 
proved  in  every  case,  and  you  cannot  make  any  difference  in  the 
application  of  the  rule."  Maule,  J. :  "The  offense  must  be  proved. 
If  a  man  go  into  London  Docks  sober,  without  means  of  getting 
drunk,  and  comes  out  of  one  of  the  cellars  very  drunk  wherein  are 
a  million  gallons  of  wine,  I  think  that  would  be  reasonable  evidence 
that  he  had  stolen  some  of  the  wine  in  that  cellar,  though  you  could 
not  prove  [by  direct  testimony]  that  any  wine  was  stolen  or  any 
wine  missed."  Mr.  Ribton:  "The  corpus  delicti  must  be  proved"; 
Maule^  J.:  "Where  is  the  rule  that  the  corpus  delicti  must  be  ex- 
pressly proved?";  Mr.  Ribton:  "In  Lord  Hale  it  is  so  laid  down"; 
Maule,  J, :  "Only  as  a  caution  in  cases  of  murder" ;  Jervis,  C.  J. : 
"We  are  all  of  opinion  that  there  is  nothing  in  the  objection." 


COMMONWEALTH   v.   WEBSTER    (1850). 

5  Cush.  2p^,  ^08,  and  Beniis'  Rep.  4/^. 

'Shaw,  C.  J.:  "The  prisoner  at  the  bar  is  charged  with  the 
wilful  murder  of  Dr.  George  Parkman.  This  charge  divides  itself 
into  two  principal  questions,  to  be  resolved  by  the  proof :  first, 
■*■""  whether  the  party  alleged  to  have  been  murdered  came  to 
his  death  by  an  act  of  violence  iniiicted  by  any  person ;  and  if  so, 
secondly,  whether  the  act  was  committed  by  the  accused.  Under 
the  first  head  we  are  to  inquire  and  ascertain,  whether  the  party 
alleged  to  have  been  slain  is  actually  dead ;  and,  if  so,  whether  the 
evidence  is  such  as  to  exclude,  beyond  reasonable  doubt,  the  suppo- 
sition that  such  death  was  occasioned  by  accident  or  suicide,  and 
to  show  that  it  must  have  been  the  result  of  an  act  of  violence. 
When  the  dead  body  of  a  person  is  found,  whose  life  seems  to  have 
been  destroyed  by  violence,  three  questions  naturally  arise.  Did 
he  destroy  his  own  life?  Was  his  death  caused  by  accident?  Or 
was    it    caused    by    violence    inflicted    on    him    by    others  ?      In    most 

S — The    facts    of    this    case    have   already  been   stated  in  No.    17,  ante. 


No.  191.  REQUIRED  KINDS  OF  WITNESSES.  183 

instances,  there  are  facts  and  circumstances  surrounding  the  case, 
which,  taken  in  connection  with  the  age,  character,  and  relations 
of  the  deceased,  will  put  this  beyond  doubt.  In  a  charge  of  crim- 
inal homicide,  it  is  necessary  in  the  first  place  by  full  and  substan- 
tial evidence  to  establish  what  is  technically  called  the  corpus  delicti, 
— the  actual  offense  committed;  that  is,  that  the  person  alleged  to  be 
dead  is  in  fact  so;  that  he  came  to  his  death  by  violence  and  under 
such  circumstances  as  to  exclude  the  supposition  of  a  death  by  acci- 
dent or  suicide  and  warranting  the  conclusion  that  such  death  was 
inflicted  by  a  human  agent;  leaving  the  question  who  that  guilty 
agent  is  to  after  consideration.  ...  It  has  sometimes  been  said  by 
judges  that  a  jury  ought  never  to  convict  in  a  case  of  homicide 
unless  the  dead  body  be  found  and  identified.  This,  as  a  general 
proposition,  is  undoubtedly  true  and  correct ;  and  disastrous  and 
lamentable  consequences  have  resulted  from  disregarding  the  rule. 
But,  like  other  general  rules,  it  is  to  be  taken  with  some  qualification. 
It  may  sometimes  happen  that  the  dead  body  cannot  be  produced, 
although  the  proof  of  the  death  is  clear  and  satisfactory;  as  in  a 
case  of  murder  at  sea,  where  the  body  is  thrown  overboard  in  a  dark 
and  stormy  night,  at  a  great  distance  from  land  or  any  vessel; 
although  the  body  cannot  be  found,  nobody  can  doubt  that  the  author 
of  that  crime  is  chargeable  with  murder."" 


STATE  V.  BARRETT    (1898). 
S3  Or.   194,  34  Pac.  Soy. 
Homicide   committed   in  a   drinking-saloon.     Bean,   J.:     "The  dis- 
trict   attorney    having    closed   the    case    for   the    state    without    calling 
any    of    the    persons    who    were    in    the    saloon    at   the    time    of 
^  the  homicide,   on  the  ground  that  they  were  the  associates  and 

employes  of  the  defendant,  and  in  his  opinion  their  testimony  would 
be  unworthy  of  belief,  although  one  of  them  was  then  in  custody 
in  default  of  an  undertaking  to  appear  and  testify  on  behalf  of  the 
state  at  the  trial,  and  another  was  on  bail  for  that  purpose,  the 
defendant's  counsel  moved  the  court  to  require  such  persons  to 
be  called  as  witnesses  for  the  state.  The  court  declined  to  do  so, 
and  the  defendant  excepted.  The  parties  referred  to  were  then 
called  by  the  defense,  and  testified,  and  the  ruling  of  the  court 
in  not  compelling  the  state  to  produce  them  on  the  stand  is  assigned 
as  error.  There  is  a  diversity  of  judicial  opinion  as  to  whether,  in 
a  criminal  case,  the  prosecuting  officer  is  compelled  to  call  as  wit- 
nesses all  the  persons  present  at  the  commission  of  the  alleged  crime. 
There  are  some  early  English  cases  which  seem  to  lay  down  the 
rule  with  more  or  less  distinctness  to  that  effect.  .  .  .  And  in  this 
country  it  is  the  rule  in  Michigan  and  Montana  that  the  prosecuting 

6 — Compare  the  authorities  cited  in   W.,  §§  2072,   2081. 


184  QUANTITATIVE   RULES.  No.  191. 

officer  is  bound  to  show  by  res  gestae,  or  entire  transaction,  by  calling 
all  the  obtainable  witnesses  present  at  the  time,  unless  it  appeais 
that  the  testimony  of  those  not  called  would  be  merely  cumulative. 
.  .  .  But  this  doctrine  is  denied  and  repudiated,  and  we  think  right- 
fully, by  a  great  majority  of  the  courts  in  which  the  question  has 
come  up  for  adjudication.  .  .  .It  probably  came  into  use  in  England 
at  a  time  when  the  right  of  a  defendant  in  a  criminal  case  to  be  rep- 
resented by  counsel,  or  to  have  witnesses  appear  and  testify  in  his 
behalf,  was  either  denied  entirely,  or  very  much  abridged.  Under 
such  circumstances,  it  was,  of  course,  important  that  the  prose- 
cution be  compelled  to  prove  the  entire  transaction,  and  to  call  all 
the  witnesses  present  at  the  time,  whether  they  would  testify  for 
or  against  the  defendant.  But  these  restrictions  upon  the  rights  of 
a  defendant  do  not,  and  never  did,  exist  in  this  country.  Here  the 
right  of  the  accused  to  appear  by  counsel,  and  to  have  compulsory 
process  for  obtaining  witnesses  in  his  favor,  is  everywhere  recog- 
nized, and  generally  guaranteed  by  the  fundamental  law.  There  is 
therefore  no  necessity  for  requiring  the  State  to  call  all  the  persons 
who  were  present  when  the  offense  was  committed,  or  any  particular 
number  of  them.  The  rights  of  the  defendant  are  not  in  any  way 
abridged  by  a  failure  to  do  so.  He  has  the  assistance  and  advice 
of  counsel  selected  by  himself,  if  able  to  employ  one,  and,  if  not, 
appointed  by  the  Court,  and  compulsory  process  for  obtaining  wit- 
nesses at  the  public  expense.  In  addition  to  this,  the  State  is  bound 
to  make  out  its  case  beyond  a  reasonable  doubt;  and  if  the  prose- 
cuting officer  does  not  call  sufficient  witnesses  for  that  purpose,  or 
if  any  unfavorable  inference  can  be  drawn  from  his  failure  to  call 
any  witness,  the  defendant  is  not  likely  to  suffer  by  the  omission ;  and 
if  he  calls  only  such  witnesses  as  are  favorable  to  the  State,  the  de- 
fendafit  has  a  right  to  call  any  others  which  he  may  suppose  will 
relate  the  facts  favorable  to  him."'^ 


DOE  V.   FLEMING    (1827). 
4  Bing.   266. 
Parke,  B.  :    "The  general  rule  is  that  reputation  is  sufficient  evi- 
dence of  marriage,  and  a  party  who  seeks  to  impugn  a  principle  so 
well   established  ought   at   least  to   furnish   cases  in   support  of 
"         his   position." 


BREADALBANE  case    (1867). 

L.  R.  I  Sc.  App.  182,  192,  ig6,  211. 

James  Campbell,  of  the  Glenfalloch  family,  an  ensign  in  the  40th 

Foot,  then   stationed  at   Bristol,  became  acquainted  with   Eliza  Maria 

Blanchard,  the  young  wife  of  a  middle-aged  grocer,  named  Lud- 

■'^**       low.     With  James   Campbell  she  eloped  from  her  husband,  who 

7 — Compare   the  authorities  cited   in   W.,  §  2079. 


No.  193.  REQUIRED    KINDS    OF    WITNESSES.  185 

did  not  long  survive  her  departure,  for  he  died  in  January,  1784. 
The  guilty  parties,  however,  proved  constant  and  true  to  each 
other.  In  1782,  they  went  to  America,  with  James  Campbell's 
regiment,  he  representing  her  as  his  wife.  In  1783,  an  elder 
brother  of  James  Campbell,  writing  from  Scotland  to  another  brother 
in  Jamaica,  stated  that  "He  had  had  a  letter  from  James  in  America," 
and  that  "he  and  Mrs.  Campbell  were  both  well ;"  the  writer  adding, 
"that  he  had  not  seen  her,  but  that  she  was  exceeding  well  spoke 
of."  In  February,  1784  (a  month  after  Ludlow's  death),  James  Camp- 
bell and  Eliza  Maria  Blanchard  arrived  in  England,  with  his  regiment 
■which  returned  from  Canada.  It  was  then  open  to  them  to  join  hands, 
but,  judging  from  the  evidence,  they  abstained  from  doing  so.  In 
1788,  they  had  a  son,  their  eldest;  and  the  great  question  was  as  to  his 
status — whether  he  was  legitimate  or  not — that  question  depending  on 
another  question — whether  his  parents  had  ever  lawfully  intermarried. 
After  many  wanderings  in  England,  they  settled  ultimately  in  Scot- 
land, the  country  of  James  Campbell's  domicil.  Residing  there  con- 
stantly from  1793  till  his  death,  in  1806,  they  were  universally  reputed 
to  stand  towards  each  other  in  the  sacred  relation  of  husband  and 
wife,  although  no  formal  marriage  was  ever  shewn  to  have  taken 
place  between  them. 

L.  C.  Chelmsford:  "There  appears  to  be  the  most  conclusive  evi- 
dence that  from  the  first  period  of  their  cohabitation  Eliza  Maria 
Blanchard  passed  as  the  wife  of  James  Campbell,  and  that  for  many 
years  they  were  generally  reputed  to  be  husband  and  wife.  But  the 
evidence  of  the  reputation  of  a  marriage  having  existed  between  the 
parties  does  not  end  with  the  death  of  James  Campbell.  If  they  were 
not  married,  William  John  Lambe  Campbell  was  illegitimate,  and 
therefore  every  acknowledgment  of  his  legitimacy  by  those  who  must 
have  been  acquainted  with  the  way  in  which  his  parents  were  received 
and  reputed  in  society  is  evidence  in  favour  of  their  having  been  law- 
fully married.  ...  It  may  be  assumed,  from  the  letter  of  Colin  Campbell 
to  his  brother  Duncan,  that  in  September,  1783,  it  was  believed  by 
the  family  of  the  Campbells  that  James  Campbell  was  married,  and 
therefore,  so  far  as  the  family  was  concerned,  that  he  and  Eliza  jMaria 
Blanchard  were  considered  to  be  husband  and  wife.  But  this  did  not 
amount  to  habit  and  repute,  which  arises  from  parties  cohabiting 
together  openly  and  constantly  as  if  they  were  husband  and  wife, 
and  so  conducting  themselves  towards  each  other  for  such  a  length 
of  time  in  the  society  or  neighbourhood  of  which  they  are  members 
as  to  produce  a  general  belief  that  they  are  really  married  persons. 
Now,  during  the  whole  time  of  the  cohabitation,  down  to  the  death  of 
Christopher  Ludlow,  James  Campbell  and  Eliza  Maria  Blanchard 
were  not  living  in  the  neighbourhood  and  society  of  his  family,  and 
therefore  the  reputation  in  the  family  of  their  being  married  was 
nothing  more  than  the  private  opinion  of  the  members  of  it.  But  if 
this  is  sufficient  to  constitute  habit  and  repute,  so  far  as  the  family  of 


186 


QUANTITATIVE   RULES. 


No.  193. 


the  Campbells  was  concerned,  yet  as,  according  to  Lord  Redesdale,  in 
the  case  of  Cunningham  v.  Cunningham,  'repute  must  be  founded,  not 
in  singular  but  in  general  opinion'  of  relations,  and  friends,  and  ac- 
quaintances, the  whole  family  of  the  Ludlows  must  have  known  that 
the  parties  could  not  be  lawfully  married  during  the  lifetime  of  Chris- 
topher Ludlow.  .  .  . 

"The  case,  therefore  never  began  with  habit  and  repute;  n6r  could 
it  have  had  any  origin  at  all  in  the  sense  in  which  it  induces  a  pre- 
sumption of  marriage,  until  after  the  death  of  Ludlow.  That  event 
happened  in  January,  1784,  and  opened  the  way  to  a  change  from  an 
adulterous  connection  to  a  lawful  marriage.  .  .  . 

"From  1793  down  to  1806,  the  evidence  is  clear  and  distinct  of  an 
universal  recognition  of  the  parties  as  husband  and  wife  by  every 
member  of  the  family,  and  by  all  persons  with  whom  they  associated; 
and  there  is  nothing  whatever  to  break  in  upon  the  uniformity  of  this 
recognition.  If  the  case  were  confined  to  the  period  between  the  year 
1793,  and  the  death  of  James  Campbell,  in  1806,  it  would  be  amply 
sufficient  to  establish  a  conclusive  presumption  of  marriage  by  habit 
and  repute." 

Lord  Westbury:  "Cohabitation  as  husband  and  wife  is  a  manifes- 
tation of  the  parties  having  consented  to  contract  the  relationship 
mtcr  se.  It  is  a  holding  forth  to  the  world  by  the  manner  of 
daily  life,  by  conduct,  demeanor,  and  habit,  that  the  man  and 
woman  who  live  together  have  agreed  to  take  each  other  in  marriage 
and  to  stand  in  the  mutual  relation  of  husband  and  wife;  and  when 
credit  is  given  by  those  among  whom  they  live,  by  their  relatives, 
neighbors,  friends,  and  acquaintances,  to  these  representations  and  this 
continued  conduct,  then  habit  and  repute  arise  and  attend  upon  the 
cohabitation.  The  parties  are  holden  and  reputed  to  be  husband  and 
wife;  and  the  law  of  Scotland  accepts  this  combination  of  circum- 
stances as  evidence  that  consent  to  marry  has  been  lawfully  inter- 
changed." 


MORRIS  V.  MILLER   (1767). 

4  Burr.  2057. 

The  opinion  of  the  Court  was  asked  "upon  the  following  question, 
'whether  to  support  an  action  for  criminal  conversation,  there  must 
not  be  proof  of  an  actual  marriage' ;  the  fact  was,  they  were 
married  at  Mayfair  chapel ;  the  register  or  books  could  not  be 
admitted  in  evidence;  Keith,  who  married  them,  was  transported;  and 
the  clerk,  who  was  present,  was  dead;  so  that  the  plaintiff  could  not 
prove  the  actual  marriage  by  any  evidence."  Counsel  for  the  plaintiff 
argued  that  "we  proved  articles  [of  post-nuptial  settlement],  .  .  .  co- 
habitation, name,  and  reception  of  her  by  everybody  as  his  wife ;  though 
we  did  not  indeed  prove  it  by  any  register  or  by  witnesses  who  were 


194 


No.  196.  REQUIRED    KINDS    OF    WITNESSES.  187 

present  at  the  marriage".  Lord  Mansfield,  C.  J.,  said:  "It  certainly 
may  be  done  so  in  all  cases  except  two," — namely,  bigamy  and  criminal 
conversation.  The  plaintiff's  counsel  then  argued  that  the  defendant's 
admission  of  the  marriage  sufficed.  The  defendant's  counsel  argued 
that  the  reputation-evidence  (i)  "does  not  come  up  to  the  rule  of 
being  the  best  evidence  in  the  plaintiff's  power,"  (2)  it  was  not  an 
actual,  t.^.  ceremonial  marriage.  Mansfield,  L.  C.  J.:  "Proof  of  'actual 
marriage'  is  always  used  and  understood  in  opposition  to  proof  by 
cohabitation  and  reputation  and  other  circumstances  from  which  a 
marriage  may  be  inferred.**  .  .  .  We  are  all  clearly  of  opinion  that  in 
this  kind  of  action,  an  action  for  criminal  conversation  with  the  plain- 
tiff's wife,  there  must  be  evidence  of  a  marriage  in  fact;  acknowledg- 
ment, cohabitation,  and  reputation,  are  not  sufficient  to  maintain  this 
action.  ...  It  shall  not  depend  upon  the  mere  reputation  of  a  mar- 
riage, which  arises  from  the  conduct  or  declarations  of  the  party  him- 
self. .  .  .  Inconvenience  might  arise  from  a  contrary  determination; 
which  might  render  persons  liable  to  actions  founded  upon  evidence 
made  by  the  persons  themselves  who  should  bring  the  action.  .  .  .  Per- 
haps there  need  not  be  strict  proof  from  the  register,  or  by  a  person 
present,  but  strong  evidence  must  be  had  of  the  fact, — as,  by  a  person 
present  at  the  wedding  dinner,  if  the  register  be  burnt  r.nd  the  parson 
and  clerk  are  dead." 


Mansfield,  L.  C.  J.,  in  Birt  v.  Barlow,  i  Doug.  171,  174  (1779) : 
"An  action  for  criminal  conversation  is  the  only  civil  case  where  it  is 
necessary  to  prove  an  actual  marriage ;  in  other  cases,  cohabita- 
■*-^**  tion,  reputation,  etc.,  are  equally  sufficient  since  the  Marriage  Act 
as  before.  But  an  action  for  criminal  conversation  has  a  mixture  of 
penal  prosecution ;  for  which  reason,  and  because  it  might  be  turned  to 
bad  purpose  by  persons  giving  the  name  and  character  of  wife  to  women 
to  whom  they  are  not  married,  it  struck  me,  in  the  case  of  Morris  v. 
Miller,  that  in  such  an  action  a  marriage  in  fact  must  be  proved." 


HAM'S  CASE  (1834). 
II  Me.  3pi,  S94- 

Indictment  charging  the  respondent  with  the  crime  of  adultery.    To 
prove  the  marriage  the  government  relied  on  evidence  of  the  follow- 
ing facts : — The  respondent  moved  into  the  town  of  Fayette,  in 
1""       this    State,    more    than    twenty    years    ago,    representing    at   that 
time,  to  the  person  of  whom  he  hired  the  house,  that  he  had  a  small 

8 — Gilchrist,  J.,  in  State  v.  IVinkley,  present  at  the  ceremony.  This  constitutes 
14  N.  H.  480,  49S  (1843):  "In  criminal  proof  of  a  'marriage  in  fact,'  and  is  merely 
prosecutions,  like  indictments  for  bigamy,  direct  evidence  of  the  marriage,  as  con- 
adultery,  etc.,  direct  evidence  of  the  mar-  tradistinguished  from  cohabitation,  etc., 
riage  is  required,  and  this  may  appear  which  is  indirect  evidence  of  the  marriage." 
from  the  testimony  of  witnesses  who   were 


188  QUANTITATIVE   RULES.  No.  196. 

family,  only  a  wife  and  one  child.  Soon  after  hiring  said  house,  he 
moved  into  it  with  a  woman  and  one  child  about  five  or  six  months  old, 
and  continued  to  live  with  that  woman,  as  his  wife,  until  about  three 
years  since,  when  he  left  her  and  came  into  this  County,  or  the  County 
of  Penobscot.  In  1807,  he  built  a  house  in  Fayette,  moved  his  family 
into  it,  continued  to  reside  there  until  he  left  the  town.  During  their 
cohabiting  together,  they  were  reputed  to  be  husband  and  wife,  and 
were  supposed  to  be  married ;  and  the  woman  had  five  or  six  children 
which  were  reputed  to  be  his.  He  called  the  woman  "Miss  Ham,"  and 
treated  her  as  a  wife.  .  .  .  The  counsel  for  the  prisoner  objected  to  all 
evidence  tending  to  prove  a  marriage  by  reputation,  but  the  objection 
was  overruled.  The  counsel  also  contended  that  this  evidence  was 
insufficient  to  prove  the  marriage. 

Mellen,  C.  J.:  "The  question  which  at  once  presents  itself  on  this 
occasion  is,  Why  should  not  the  defendant's  deliberate  and  explicit  con- 
fession of  his  marriage,  in  such  a  prosecution,  be  as  competent  evidence  to 
prove  such  marriage  as  a  similar  confession  is  to  prove  the  crime  of  adul- 
tery charged?  If  either  fact  exists,  it  must  certainly  be  within  his  own 
knowledge ;  and,  as  a  general  proposition  it  is  certainly  true  that  a  delib- 
erate and  voluntary  confession,  understandingly  made,  is  the  best  evi- 
dence ;  for  he  who  makes  it  speaks  from  his  actual  knowledge  of  the  fact ; 
no  one  has  any  interest  in  its  truth  or  interest  in  disputing  it.  .  .  .  View- 
ing the  question  under  consideration  independently  of  decided  cases,  there 
would  seem  but  one  reason  why  the  deliberate  confession  of  his  mar- 
riage, made  by  defendant  in  a  prosecution  against  him  for  bigamy  or 
adultery,  should  not  be  received  as  competent  and  satisfactory  evidence 
of  such  marriage, — namely,  that  the  person  solemnizing  the  marriage 
had  no  legal  authority  to  do  it,  and  yet  the  want  of  authority  might 
not  have  been  known  by  the  person  officiating  or  by  the  defendant 
himself  when  he  made  the  confession.  ...  In  no  other  cases,  however, 
do  we  perceive  that  any  unfavorable  consequences  could  ensue  which 
would  not  follow  upon  a  conviction  upon  undisputed  proof  of  a  legal 
marriage.  .  .  .  [Yet]  the  plea  of  guilty  is  a  confession  of  the  crime, 
which  includes  a  confession  of  the  marriage,  that  being  essential  to 
the  existence  of  the  crime ;  the  Court  receives  such  a  plea  and  passes 
sentence  on  the  offender,  though  even  this  solemn  confession  in  open 
court  may  be  made  under  a  mistaken  belief  that  the  marriage  was  sol- 
emnized by  a  person  duly  authorized,  though  the  fact  was  otherwise. 
.  .  .  The  question  then  is,  whether  a  deliberate  confession  of  marriage 
is  not  as  convincing  evidence  of  the  fact  as  the  testimony  of  a  witness 
present;  for  in  the  case  of  confession  [as  well  as  of  eye-witnesses] 
the  question  of  identity  can  never  arise.  .  .  .  When  we  take  all  the 
foregoing  circumstances  into  consideration,  together  with  the  known 
fact  that  marriages  are  seldom  recorded  as  the  law  requires,  and  the 
difficulty  of  ascertaining  who  were  present  at  the  marriage,  especially 
among  the  lower  classes  and  after  the  lapse  of  a  few  years,  we  appre- 


No.  197.  REQUIRED    KINDS    OF    WITNESSES.  189 

hend  that  the  interests  of  public  justice  would  be  advanced  by  a  re- 
laxation of  the  rules  of  evidence  touching  the  point  before  us  and  by 
a  more  liberal  principle  applied  in  the  investigation  of  facts,  so  that 
the  laws  of  the  land  may  be  more  surely  enforced  against  unprincipled 
offenders  and  the  public  morals  be  more  faithfully  and  effectually 
guarded.  .  .  .  We  now  proceed  to  examine  the  evidence.  .  .  .  The  re- 
port states,  that  more  than  twenty  years  ago  the  defendant  said  he  had 
'only  a  wife  and  one  child,'  that  soon  after  it  was  proved,  he  moved 
into  a  house  with  "a  woman  and  a  small  child,"  and  lived  with  her  as 
man  and  wife,  that  they  were  reputed  as  such,  and  had  several  chil- 
dren, that  he  called  her  Miss  Ham,  and  treated  her  as  a  wife.  It 
does  not  necessarily  appear  that  the  woman  he  lived  with  was  the 
same  person  that  he  had  before  spoken  of.  His  calling  her  'Miss 
Ham,'  or  his  wife,  is  no  proof  that  she  was  his  wife.  It  is  far  from 
a  deliberate  and  explicit  confession  that  he  was  ever  married  to  her. 
As  before  has  been  observed,  if  he  had  'a  wife'  more  than  twenty 
years  ago,  it  does  not  appear  that  she  was  living  at  the  time  the  al- 
leged offence  was  committed ;  nor  does  it  appear  that  she  was  the 
'woman'  with  whom  he  afterwards  lived,  and  called  'Miss  Ham.' 
The  confession  is  not  sufficient,  according  to  the  principles  above 
stated,  to  justify  a  conviction.  It  does  not  amount  to  a  distinct  and 
deliberate  confession  of  a  marriage,  continuing  to  the  time  of  tbe 
offence  charged  in  the  indictment.  Accordingly  the  verdict  is  set 
aside,  and  as  agreed,  a  nolle  prosequi  is  to  be  entered." 


Statutes.  California,  P.  C.  1872,  §  1106;  in  bigamy,  "it  is  not  nec- 
essary to  prove  either  of  the  marriages  by  the  register,  certificate,  or 

other  record  evidence  thereof." 
^^^      Illinois,  Rev.  St.  1874,  c.  38,  §29;  St.  1845;  in  bigamy,  "it  shall 
not  be  necessary  to  prove  either  of  the  marriages  by  the  register  or  cer- 
tificate thereof,  or  other  record  evidence ;  but  the  same  may  be  proved 
by  such  evidence  as  is  admissible  to  prove  a  marriage  in  other  cases." 

Massachusetts,  Pub.  St.  1882,  c.  145,  §  31 :  "When  the  fact  of  mar- 
riage is  required  or  offered  to  be  proved  before  a  Court,  evidence  of 
the  admission  of  such  fact  by  the  party  against  whom  the  process  is 
instituted,  or  evidence  of  general  repute  or  of  cohabitation  as  married 
persons,  or  any  other  circumstantial  or  presumptive  evidence  from 
which  the  fact  may  be  inferred,  shall  be  competent";  Rev.  L.  1902. 
c.  151,  §39:  "Marriage  may  be  proved  by  evidence  of  the  admission 
thereof  by  an  adverse  party,  by  evidence  of  general  repute  or  of  co- 
habitation by  the  parties  as  married  persons,  or  of  any  fact  from  which 
the  fact  may  be  inferred.'"'' 

9 — Compare  the  authorities  cited  in  \V.,   §5  ;!o84-2o88. 


190  BOOK    I,    PART    II,   TITLE   I.  No.  198. 

SUB-TITLE  III. 

VERBAL  10   COMPLETENESS. 

READ  V.  HIDE  (1613). 

Coke's  Third  Institute,  175. 

"It  was  resolved  that  no  exemplification  ought  to  be  of  any  letters 
patent  or   of  any   other  record,   or  of  the   inrolment  thereof,  but  the 

whole  record  or  the  inrolment  thereof  ought  to  be  exemplified; 

so  that  the  whole  truth  may  appear,  and  not  of  such  part  as 
makes  for  the  one  party  and  nothing  that  makes  against  him  or  that 
manifesteth  the  truth." 


ALGERNON  SIDNEY'S  TRIAL   (1683). 

p  How.  St.  Tr.  81/,  82p,  868. 

Seditious   libel ;   Mr.    Williams,  his  counsel,   had  instructed  the  ac- 
cused: ''In  the  evidence  against  you  for  your  writing,  take  care  that 
all  that  was  writt  by  you  on  that  subject  be  produced,  and  that 
^  it  be  not   given  in  evidence  against  you  by  pieces,  which  mast 

invert  your  sense'' ;  on  the  trial,  one  of  the  passages  read  against  Sid- 
ney from  his  manuscript  was:  "The  general  revolt  of  a  nation  from 
its  own  magistrates  can  never  be  called  rebellion."  At  the  trial,  Sid- 
ney, arguing  against  using  these  passages  piecemeal,  said:  "My  lord, 
if  you  will  take  Scripture  by  pieces,  you  will  make  all  the  penmen  of 
Scripture  blasphemous.  You  may  accuse  David  of  saying,  'There  is 
no  God,'  and  accuse  the  Evangelists  of  saying,  'Christ  was  a  blas- 
phemer and  a  seducer,'  and  the  Apostles,  that  they  were  drunk".  Jef- 
fries. L.  C.  J. :  "Look  you,  Mr.  Sidney ;  if  there  be  any  part  of  it  that 
explains  the  sense  of  it,  you  shall  have  it  read.  Indeed,  we  are  trifled 
with  a  little.  It  is  true,  in  Scripture  it  is  said,  'There  is  no  God';  and 
you  must  not  take  that  alone,  but  you  must  say,  'The  fool  hath  said 
in  his  heart,  There  is  no  God.'  Now  here  is  a  thing  imputed  to  you 
in  the  libel ;  if  you  can  say  there  is  any  part  that  is  in  excuse  of  it, 
call   for   it." 


Thomas  Starkte,  Evidence,  yth  Am.  ed.,  II,  J^p   (1824)  :  "Of  all 

kinds  of  evidence,  that  of  extra  judicial  and  casual  observations  is  the 

weakest  and  most  unsatisfactory.     Such  words  are  often  spoken 

without  serious  intention,  and  they  are  always  liable  to  be  mis- 

10 — "Verbal"  is  here  used  in  its  proper        spoken   or  written.      "Oral"   signifies    "con- 
sense    of    "consisting    in    words,"    whether        sisting  in   speech." 


No.  201.  VERBAL    CO:MrLETEXESS.  ,       191 

taken  and  misremembered,  and  their  meaning  is  apt  to  be  misrepresented 
and  exaggerated.  I  once  heard  a  learned  judge  (now  no  more),  in 
summing  up  on  a  trial  for  forgery,  inform  the  jury  that  the  prisoner, 
in  a  conversation  which  he  had  had  with  one  of  the  witnesses,  had 
said,  'I  ain  the  drawer,  the  acceptor,  and  the  indorser  of  the  bill.' 
Whilst  the  learned  judge  was  commenting  on  the  force  of  these  ex- 
pressions, he  was,  at  the  instance  of  the  prisoner,  set  right  as  to  the 
statement  of  the  witness,  which  was  that  the  prisoner  had  said,  'I  know 
the  drawer,  the  acceptor,  and  the  indorser  of  the  bill.'  Had  the  wit- 
ness, and  not  the  judge,  made  the  mistake,  the  consequences  might  have 
been   fatal.     The  prisoner  was  acquitted. ^^ 


COMMONWEALTH  v.   KEYES    (1858). 

II  Gray  323,  324. 

Merrick,  J. :  "It  is  undoubtedly  the  general  rule  that  whenever  the 
statements,  declarations  or  admissions  of  a  party  are  made  subjects  of 
proof,  all  that  was  said  by  him  at  the  same  time  and  upon  the  same 
"  subject  is  admissible  in  his  favor,  and  the  whole  should  be  taken 
and  considered  together.  This  is  essential  to  a  complete  understanding 
of  what  he  intended  to  express  by  the  particular  phrases  and  languages 
which  he  used.  To  give  effect  to  general  statements,  without  regard 
to  the  qualifications  with  which  they  are  accompanied,  and  by  which 
they  ma^  be  materially  modified,  would  manifestly  lead  to  error,  and 
be  likely  to  be  directly  productive  of  injustice.  All  therefore  is  to  be 
heard  and  weighed  before  it  can  be  affirmed  that  the  force  and  effect 
of  language,  whether  written  or  spoken,  are  fully  and  justly  appre- 
hended. In  the  construction  of  contracts,  the  same  principle  prevails, 
requiring  that  each  particular  part  shall  be  examined  and  considered, 
in  order  to  learn  and  comprehend  the  scope  and  purport  of  the  whole. 
All  writings,  whether  of  a  public  or  private  character,  are  to  be  sub- 
jected to  the  same  kind  of  scrutiny.  No  provision  of  a  statute,  how- 
ever minute,  is  to  be  overlooked  when  searching  for  the  design  and 
object  of  the  Legislature  in  its  enactment,  and  in  considering  how  it 
ought  to  be  interpreted  and  explained;  just  as  particular  covenants  in 
a  deed,  or  devises  in  a  will,  are  to  be  construed  according  to  the  intent 
of  the  parties  in  the  one  case,  and  of  the  testator  in  the  other,  so 
far  as  it  can  be  ascertained  by  bringing  into  view  all  the  expressions 
and  provisions  contained  in  these  respective  instruments." 

II — Neilson,    J.,    in     Tilton    v.    Beecher,  has    been    given    in    Starkie    on    Evidence, 

Abbott's    Rep.    II,    837    (1875),    on    certain  to  the  effect  that  this  kind  of  testimony  is 

quotations  being  cited  to  him:     "When  you  dangerous,    first,    because    it    may    be    mis- 

and    I    were    boys,    we    found    that    general  apprehended    by    the    person    who    hears    it; 

principle    cited    in    all    the    text-books    very  secondly,    it    may    not    be    well-remembered; 

much  after  the  form  that  you  have  put  it.  thirdly,   it  may  not  be  correctly  repeated." 
.     .     .     Perhaps  the  best  statement  of  that 


192  QUANTITATIVE   RULES.  No.  202. 

(A)     COMPULSORY  COMPLETENESS 

EATON  V.  RICE   (1836). 

8  N.  H.  3/8,  380. 

Issue  as  to  a  dividing  line  between  two  lots  of  land.  It  appeared 
that  in  the  spring  of  1835  the  parties  were  together  upon  the  land  now 
in  dispute,  and  had  a  conversation  about  the  line;  and  a  witness 
""^  who  was  present  at  that  time  stated  that  he  understood,  by  their 
conversation,  that  they  then  agreed  where  the  true  line  was.  Richard- 
son, C.  J.:  "It  is  objected,  in  this  case,  that  the  defendant's  witness 
was  improperly  permitted  to  state  generally  what  he  understood  the 
agreement  between  the  parties  to  have  been,  as  to  the  line  between 
their  lands,  from  their  conversation  on  the  subject.  ...  If  a  witness 
should  undertake  to  state  in  detail  all  that  was  said  by  two  persons 
in  making  a  contract,  in  the  precise  order  in  which  it  was  said,  and 
exactly  as  said,  it  would  amount  to  nothing  more  than  stating  what  he 
understood  them  to  say.  But  it  can  rarely  happen  that  a 
witness  who  was  present  when  a  conversation  was  had  between 
two  individuals  can  at  any  time  afterwards,  and  particularly  at  any 
distant  time,  state  precisely  what  was  said  by  them,  although  he  may 
recollect  distinctly  an  agreement  made  between  them  at  the  time.  If, 
then,  in  all  cases  the  witness  is  required  to  state  what  was  said  so 
accurately  that  the  jury  may  be  enabled  to  judge  by  the  terms  used 
what  a  contract  was,  it  must  frequently  happen  that  a  contract  not  in 
writing  cannot  be  proved  at  all.  .  .  .  The  recollection  of  a  witness  as 
to  what  an  agreement  between  parties  was,  according  to  his  under- 
standing of  what  was  said  by  them  at  the  time,  may  be  very  satisfac- 
tory evidence,  although  he  may  not  be  able  to  recollect  distinctly  one 
word  that  was  said.  .  .  .  The  credit  that  may  be  due  to  a  witness  in 
these  cases  may  depend  much  on  his  being  able  to  detail  enough  of  the 
conversation  to  show  that  his  understanding  of  the  matter  was  prob- 
ably right.  But  what  he  understood  is  in  all  cases  evidence  to  be 
weighed  by  the  jury." 


SUMMONS  V.  STATE  (1856). 

5  Oh.  Sf.  323,  346,  351. 

Murder  by  poisoning.  One  Mary  Clinch,  a  witness  at  the  first  trial, 
had  since  died.  Thomas  A.  Logan  was  offered,  on  the  third  trial,  to 
prove  her  former  testimony.  He  testified  that  he  was  present 
"'"**  at  the  first  trial,  and  was  the  student  and  clerk  of  Judge  Walker, 
one  of  the  counsel  for  the  state;  that  he  heard  all  the  testimony  given 
by  Mary  Clinch,  and  thought  he  had  taken  it  all  down  in  writing,  and 
could  give  the  substance  of  all  she  testified  from  his  recollection,  aided 
by  reference  to  his  notes.     On  cross-examination  as  to  this  point,  he 


No.  203.  VERBAL    COMPLETENESS.  193 

Stated  that  he  took  down,  as  nearly  as  possible,  the  substance  of  all 
that  Mary  Clinch  testified  on  examination,  cross-examination,  re-exam- 
ination, and  in  rebutter.  That  he  recollected,  without  reference  to 
his  notes,  the  main  points  of  her  testimony,  and  recollected  the  sub- 
stance of  all  of  it,  by  refreshing  his  recollection  with  his  notes.  That 
he  could  not  say  he  took  everything,  but  he  thought  he  took  the  sub- 
stance of  everything.  That  the  cross-examination  was  rapid,  but  Judge 
Walker  frequently  stopped  the  witness,  Mary  Clinch,  to  enable  him  to 
get  it  all  down.  .  .  .  Logan  was  then  requested  by  counsel  for  the  state 
to  give  the  testimony  of  Mary  Clinch  from  his  recollection,  refreshed 
by  his  notes,  which  he  had  with  him  in  court,  but  the  notes  were  not 
offered  in  evidence.  Defendant's  counsel  objected.  Bartley^  C.  J.: 
"There  would  seem  to  be  no  sound  reason  for  subjecting  it  [former 
testimony]  to  a  rigid  rule  amounting  to  its  almost  total  exclusion, 
which  is  inapplicable  in  other  cases  where  testimony  showing  words 
spoken  or  the  statements  of  a, party  or  other  person  is  admissible.  In 
prosecutions  for  perjury,  the  testimony  of  the  accused  upon  which  per- 
jury is  assigned  is  not  required  to  be  ipsissimis  verbis,  but  allowed  to 
be  given  in  substance;  so  with  the  declarations  of  a  co-conspirator, 
declarations  made  in  extremis,  or  the  admissions  or  confessions  of  a 
party.  So  also  with  testimony  of  a  verbal  slander,  or  the  declarations 
or  statements  of  a  party  or  witness,  offered  for  purposes  of  contradic- 
tion or  impeachment.  .  .  .  What  sufficient  reason  can  exist  for  a  de- 
parture from  the  rule  in  case  of  the  testimony  of  a  deceased  witness 
on  a  former  trial  ?  ...  It  is  apparent,  from  a  review  of  the  decisions 
on  this  question,  that  the  weight  of  authority  is  very  decidedly  against 
the  rule  which  requires  an  exact  recital  of  the  words  used  by  the 
deceased  witness.  The  difficulty  which  appears  to  have  troubled  courts 
so  long  on  the  question,  has  been  a  controversy  about  words,  rather 
than  facts.  The  efficacy  of  the  testimony  consists,  not  in  the  mere 
words  used,  but  the  matters  of  fact  stated  by  the  deceased  witness.  If 
the  facts  stated  by  the  deceased  witness  on  the  former  trial,  can  be 
narrated  with  substantial  accuracy  in  all  their  material  particulars, 
there  would  seem  to  be  no  good  reason  for  cavil  about  the  very  words. 
.  .  .  There  is  a  distinction,  however,  between  narrating  the  statements 
made  by  the  deceased  witness  and  giving  the  effect  of  his  testimony. 
This  distinction  may  be  illustrated  thus:  If  a  witness  state  that  A, 
as  a  witness  on  a  former  trial,  proved  the  execution  of  a  written  in- 
strument by  B,  that  would  be  giving  the  effect,  which  is  nothing  else 
than  the  result  or  conclusion  produced  by  A's  testimony.  But  if  the 
witness  states  that  A  testified  that  he  had  often  seen  B  write,  that  he 
was  acquainted  with  his  handwriting,  and  that  the  name  subscribed  to 
the  instrument  of  writing  exhibited  was  B's  signature,  that  would  be 
giving  the  substance  of  A's  testimony,  though  it  might  not  be  in  the 
exact  words.  .  .  .  While,  therefore,  a  witness  should  not  be  trammeled 
by  a  rule  restricting  him  to  the  words  used  by  the  deceased  witness, 


194  QUANTITATIVE   RULES.  No.  204. 

he  should  not  be  allowed  the  latitude  of  giving  the  mere  effect  or  re- 
sult of  the  deceased  witness'  testimony.. 


THOMSON  V.  AUSTEN  (1823). 
2  Dowl.  &  R.  j(5j. 

Assumpsit  for  goods  sold  and  delivered.  The  plaintiff  having  proved 
a  prima  facie  case  of  demand  upon  the  defendant  for  goods  sold  him 
to  the  amount  of  630/.,  a  clerk  of  the  defendant's  attorney  was 
called,  for  the  purpose  of  showing,  that  in  an  interview  between 
the  clerk  and  the  plaintiff,  the  latter  had  said,  "he  was  so  anxious  to 
get  out  of  law  that  he  would  refer  the  question  in  dispute  to  the  wit- 
ness, as  an  arbitrator ;"  and  upon  that  being  declined,  added,  "he  had 
received  800/.  from  Mr.  Campbell,  on  Mr.  Austen's  (the  defendant's) 
account,  which  he  meant  to  set  off  against  some  bad  debts  owing  to 
him  from  some  other  persons."  ...  It  was  objected  on  the  part  of 
the  plaintiff  that  the  evidence  could  not  be  received,  because  it  was  in 
the  nature  of  a  confidential  communication,  made  with  a  view  to  a 
compromise,  and  was  therefore  protected  by  the  general  rules  of  evi- 
dence; and  the  learned  judge  yielding  to  the  objection,  the  evidence 
was  rejected. 

Abbott,  C.  J. :  "Upon  the  best  consideration  I  have  been  able  to  give 
to  this  case,  I  am  of  opinion  that  the  mode  in  which  the  learned  judge, 
who  tried  this  cause,  left  the  point  at  issue  to  the  jury,  was  not  alto- 
gether correct ;  and  therefore  it  is  our  duty  to  send  it  down  for  fur- 
ther inquiry  before  another  jury.  It  appears  that  the  former  part  of 
the  conversation  to  which  the  witness  was  a  party,  was  received  in 
evidence,  and  was  so  summed  up  to  the  jury;  and  that  the  latter  part, 
which  has  been  the  subject  of  argument  to-day,  was  rejected.  ...  It 
is  at  all  times  a  dangerous  thing  to  admit  a  portion  only  of  a  conver- 
sation in  evidence,  because  one  part  taken  by  itself  may  bear  a  very 
different  construction  and  have  a  very  different  tendency  to  what  would 
be  produced  if  the  whole  were  heard;  for  one  part  of  a  conversation 
will  frequently  serve  to  qualify  and  to  explain  the  other." 


Parnell  Commission's  Proceedings^  ist,  4th,  6th,  7th,  83d  days 
(1888),  Times'  Rep.  pt.  i,  p.  2j6,  pt.  2,  pp.  28,  104,  lOp;  pt.  23,  p.  60. 
The  Land  League  and  its  leaders  were  charged  with  encouraging 
*""  outrage  and  crime,  and  numerous  speeches  of  the  leaders  were 
offered  to  prove  this;  repeated  discussion  took  place,  during  the  trial,  as 
to  the  fair  and  proper  way  of  using  the  passages  relied  upon ;  in  the  At- 
torney-General's opening,  the  following  statements  were  made ;  the  At- 
torney-General: "1  have  not  got  the  whole  of  the  speeches;  I  have  only 
reports.  A  man  may  speak  for  two  hours,  but  I  may  have  only  a  few 
lines  of  his  speech" ;  President  Hannen  :  "If  you  have  not  got  the 
whole  of  them,  it  will  be  open  to  Sir  Charles  Russell  to  correct  you 


Xo.  206.  VERBAL    COMPLETENESS.  195 

by  referring  to  such  reports  as  do  exist ;  but  what  you  do  use  [in  your 
opening  address]  you  will  put  in  the  whole  of  it  [in  evidence  later]"; 
the  Attorney-General :  "Without  exception,  the  whole  extract  at  my 
command  of  every  speech  I  read  shall  be  put  in."  Then  at  a  later 
day,  when  certain  speeches  were  put  in  evidence  by  Sir  H.  James  from 
constables'  notes,  Mr.  Healy  having  claimed  that  "the  proper  course  is 
to  read  the  entire  speech,"  President  Hannen  said:  "It  is  not  nec- 
essary for  you,  Sir  Henry,  to  read  the  whole  speech,  but  only  those 
portions  on  which  you  rely.  .  .  .  The  only  regular  course  is  this  (and 
whatever  it  leads  to,  it  must  be  followed)  :  You,  Sir  Henry,  will  call 
attention  to  what  you  consider  the  material  parts  of  the  speech,  and 
Sir  C.  Russell  can  on  cross-examination  refer  to  other  portions  which 
he  may  consider,  and,  if  necessary,  the  cross-examination  can  be  post- 
poned until  he  has  had  an  opportunity  of  seeing  the  full  speeches." 
Shortly  afterwards,  the  counsel  for  the  Times  proposed  an  arrange- 
ment by  which  copies  of  all  the  reports  of  speeches  were  to  be  prepared 
and  underlined  and  furnished  to  all  parties  for  convenient  reference 
when  Mr.  Healy  inquired :  "Some  of  the  speeches  made  would  cover 
two  or  three  columns  if  taken  verbatim,  but  they  have  been  condensed 
[in  the  constable's  notes]  into  three  or  four  sentences.  What  is  the 
intention  with  regard  to  them?"  Sir  H.  James:  "We  can  only  present 
the  short  report  in  those  cases,  because  that  is  all  we  have  got."  On 
a  still  later  occasion,  Mr.  Rcid,  the  counsel  for  Mr.  O'Brien,  read  pas- 
sages from  his  speeches  showing  his  opposition  to  criminal  methods, 
and  was  interrupted  by  the  Attorney-General :  "You  have  omitted  a 
passage  which  precedes  that";  Mr.  Reid:  "I  thoiight  the  rule  was  that 
what  you  wished  to  read  should  be  read  subsequently;"  Attorney- 
General:  "I  was  only  suggesting  that  the  course  which  has  been  pur- 
sued on  every  other  occasion  by  Sir  Charles  Russell  and  yourself 
should  be  pursued  now";  President  Hannen  (to  Mr.  Reid):  "This 
question  arose  before,  and  there  was  great  complaint  on  your  part  that 
the  Attorney-General  did  not  read  all,  and  then  you  read,  or  Sir  C. 
Russell  read  something.  But  I  have  laid  down  the  rule  that,  unless 
you  can  come  to  a  compromise,  the  true  rule  is  for  you  to  read  what 
you  attach  importance  to  and  for  the  other  side  to  do  the  same."^ 


EATON'S  TRIAL  (1794). 

2^  How.  St.  Tr.  lojo. 

Sedition.     Mr.  Gurney,  for  the  defence:  "I  desire  that  the  whole  of 
the    [alleged  seditious]    speech  of  Mr.  Thelwall  may  be  read   [by  the 
prosecution],    a   part    only    of   which    is    included    in    the   indict- 
ment".    Mr.   Fielding,    for   the   prosecution:    "You   mav   read  it 
as  part  of  your  evidence."     Mr.  Gurney:  "I  know  I  may;  but  I  con- 
ceive I  have  a  right  to  have  it  read  as  part  of  yours.     Whenever  a 

I — Compare  the  authorities  cited   in   W.,  §§  20()7-2ioo. 


196  QUANTITATIVE   RULES.  No.  206. 

part  of  a  paper  is  read  in  evidence  by  one  party,  the  other  party  has 
a  right  to  insist  upon  the  whole  being  read  at  that  time."  Mr.  Re- 
corder: "I  think  you  [to  Mr.  Gurney^  must  read  it  as  a  part  of  your 
evidence,  if  you  wish  to  have  it  read." 


TILTON  V.  BEECHER  (1875). 

A^.  Y.,  Abbott's  Rep.  II,  270. 

Action  for  criminal  conversation.  Mr.  Evarts  (cross-examining)  : 
"Look  at  this  article,  Mr.  Tilton,  .  .  .  and  say  if  it  was  written  by 
)'ou  and  published  in  your  newspaper?"  A.  "Yes,  sir."  Mr. 
""'  Shearman:  "It  is  an  article  entitled,  'Mr.  Tilton's  Rejoinder  to 
Mr.  Greeley.'"  Mr.  Fullerton:  "If  we  have  the  sermon,  let  us  have 
the  text."  Mr.  Beach:  "I  think  it  is  the  rule,  sir,  that  where  an  an- 
swering letter  is  read,  the  letter  to  which  it  was  a  reply  should  be  read 
also."  Judge  Neilson  :  "That  is  the  rule.  Perhaps  if  counsel  will  look 
at  it  they  can  judge  whether  it  is  material."  Mr.  Evarts:  "Your 
Honor,  we  vmderstand  exactly  what  the  rule  is.  All  that  can  be 
claimed  by  our  learned  friends  is  that  it  gives  them  a  right  to  read 
any  part  of  the  paper  to  which  it  is  a  reply,  if  they  see  fit.  They 
cannot  make  us  read  it."  Judge  Neilson  :  "I  have  had  occasion  to 
say  that  where  one  party  puts  a  paper  in  they  were  at  liberty  to  read 
a  part  of  it.  But  it  was  deemed  all  put  in  by  them,  and  the  other  side 
could  read  any  portion  of  it  they  thought  proper."  Mr.  Fullerton: 
"That  does  not  present  this  case."  Mr.  Evarts:  "How  does  it  fail  to 
present  this  case?  Supposing  it  is  all  in,  are  we  obliged  to  read  it 
all?  ...  I  do  not  understand  that  we  are  obliged  to  read  the  whole 
article  to  get  at  the  point  which  is  important  to  us."  Judge  Neilson  : 
"The  whole  must  be  deemed  put  in  by  you."  Mr.  Evarts:  "That  may 
be."  Judge  Neilson  :  "And  you  read  such  part  as  you  now  think 
proper,  and  they  can  afterwards  call  attention  to  other  parts.  I  think 
that  will  answer."- 


PERRY  v.   BURTON   (1884). 

jii  III.  138. 

Bill  for  partition  of  a  tract  of  land.  Scholfield,  C.  J.:  "The  tract 
was  entered  by  Isaac  Cook  on  the  30th  of  November,  1835,  and  he  con- 
veyed the  undivided  half  thereof  to  Asa  M.  Chambers  and  Shel- 
^"''  don  Benedict,  by  warranty  deed,  on  the  7th  of  February,  1836. 
In  November,  1848,  Benedict  conveyed  his  interest  in  the  tract  to  Cham- 
bers, and  on  the  loth  of  November,  1871,  Chambers  conveyed  his  in- 
terest in  the  tract  to  the  appellants,  James  S.  Perry  and  John  N.  Hen- 
derson.    No  question  is  made  as  to  any  of  these  conveyances,  except 

2 — Compare  the  authorities  cited   in  W.,  §  2102. 


No.  209.  VERBAL    COMPLETENESS.  197 

that  by  Benedict  to  Chambers.  The  deed  effecting  that  conveyance  was 
lost,  and  its  execution  and  contents  were  proved  by  oral  evidence  only, 
and  counsel  for  appellees  insist  that  such  evidence  was  not  sufficiently 
full  and  satisfactory.  We  can  not  concur  in  this  view.  The  facts  that 
the  deed  was  executed  and  was  afterwards  lost  were  clearly  proved.  .  .  . 
His  testimony  as  to  the  contents  of  the  deed,  we  think,  is  sufficiently 
full.  A  witness  testifying  to  the  contents  of  a  lost  deed  is  not  to  be 
expected  to  be  able  to  repat  it  verbatim  from  memory.  Indeed,  if  the 
were  to  do  so,  that  circumstance  would,  in  itself,  be  so  conspicuous  as 
to  call  for  an  explanation.  .  .  .  All  that  parties,  in  such  cases,  can  be 
expected  to  remember  is  that  they  made  a  deed,  to  whom,  and  about 
what  time,  for  what  consideration,  whether  warranty  or  quitclaim,  and 
for  what  party.  To  require  more  would,  in  most  instances,  practically 
amount  to  an  exclusion  of  oral  evidence  in  the  case  of  a  lost  or  de- 
stroyed deed."^ 


VANCE  V.  REARDON  (1820). 

2  N.  &  McC.  2()Q,  S03. 

Trover  for  a  slave,  claimed  by  the  plaintiff'  under  a  sheriff''s  sale 
under  an  execution  on  a  judgment  against  William  Harville,  at  Orange- 
burgh,  in  1806.  The  plaintiff  produced  a  paper  purporting  to  be 
^""  an  exemplification  of  the  proceedings,  certified  by  the  clerk.  It 
contained  a  literal  copy  of  the  process,  (being  within  the  summary  juris- 
diction,) the  judgment  and  the  first  execution.  This  execution  was  for 
$95,  including  debt,  interest,  and  costs,  and  was  entered  in  the  sheriff's 
office  the  5th  November,  1806.  Instead  of  a  literal  copy  of  the 
second  execution,  the  clerk  furnished  only  an  abstract,  containing  the 
names  of  the  parties,  the  amount  of  debt,  interest,  and  costs,  with  a 
memorandum  of  an  entry  in  the  sheriff's  office,  2d  July,  1808;  and  a 
return  of  nulla  bona,  without  date ;  and  also,  that  a  third  execution  was 
signed,  19th  March,  1808.  There  was  also  a  similar  abstract  of  a  third 
execution,  entered  in  the  sheriff's  office,  19th  March,  1808,  on  which  the 
following  return  was  stated  to  have  been  made,  "levied  on  a  negro  man 
named  Joe,  sold  the  same  on  the  4th  April,  1808,  purchased  by  Wil- 
liam Vance,  for  $251.10."  The  certificate  of  the  clerk  to  these  exempli- 
fications were  in  these  words :  "I,  Samuel  P.  Jones,  Clerk  of  the  Court 
of  Common  Pleas,  for  the  district  of  Orangeburgh,  do  hereby  certify, 
that  the  two  sheets  of  paper  hereunto  annexed,  do  contain  a  true  copy 
(or  extract),  of  the  proceedings  in  a  certain  cause,  wherein  Robert 
Tutle  is  plaintiff,  and  William  Harville  is  defendant,"  etc.  Upon  clos- 
ing this  evidence  the  motion  was  made  for  a  nonsuit  by  the  defendant, 
on  the  ground,  that  the  exemplification  was  only  legal  evidence  so  far 
as  it  professed  to  give  a  copy  of  the  proceedings,  and  there  being  only 

3 — Compare  the   authorities  cited   in    W.,  §5  2105,  2106. 


198  QUANTITATIVE   RULES.  No.  210. 

an  abstract  of  the  execution,  under  which  the  sale,  if  any,  was  made, 
the  plaintiff  had  failed  in  the  proof  of  property. 

Johnson,  J.:  "The  Act  of  the  Legislature  of  1721,  P.  L.  117,  i  Brev. 
Dig.  315,  authorizes  attested  copies  of  all  records,  certified  by  the  clerks 
of  the  Courts,  to  be  given  in  evidence.  ...  It  appears  to  me  obvious 
that  the  Legislature  never  intended  by  the  term  copies,  to  make  extracts 
evidence;  the  terms  themselves  are  of  different  import,  and  besides  the 
mischief  of  confounding  them  appear  to  me  too  manifest  to  need  ex- 
posure. A  party  is  not  presumed,  nor  is  he  bound,  to  know  what  evi- 
dence his  adversary  will  adduce  against  him;  and  if  he  [the  adversary] 
be  permitted  to  extract  from  a  record  only  so  much  as  he  may  deem 
necessary  to  his  own  side  of  the  question  and  to  give  it  in  as  evidence, 
he  will  always  take  care  to  leave  out  that  which  makes  against  him. 
By  the  same  rule,  the  opposite  party  would  have  the  same  right  to  ex- 
tract so  much  as  was  subservient  to  his  side  of  the  question,  which, 
from  the  specimen  of  extraction  furnished  by  this  case,  would  produce 
inexplicable  difficulties.  Thus,  in  this  case,  we  find  that  on  the  first 
a.  fa.,  when  only  $95  was  due,  $110  had  been  paid,  and  yet  an  alias  issued, 
and  also  a  pluries;  and,  as  if  to  force  conviction  upon  me  of  the  neces- 
sity of  a  literal  copy,  the  extract  represents  the  pluries  to  have  been 
entered  in  the  sheriff's  office  on  the  19th  March,  1808,  and  the  alias, 
which  must  necessarily  precede  it,  as  having  been  entered  on  the  2d  July, 
1808,  nearly  four  months  after.  But  it  has  been  argued,  that  these  ex- 
tracts were  permissible  as  prima  facie  evidence  of  the  existence  of  such 
judgments  and  executions.  I  confess  I  do  not  understand  how  this 
sort  of  evidence  can  apply  to  a  case,  when  the  court  sees  from  the  evi- 
dence produced,  that  better  and  more  ample  proof  of  the  fact  does  exist, 
and  is  in  the  power  of  the  party."* 


(B)     OPTIONAL  COMPLETENESS. 

THE  QUEEN'S  CASE  (1820). 

2  B.  &  B.  297. 

Abbott,  C.  J. :  "The  conversations  of  a  party  to  the  suit,  relative 
to  the  subject-matter  of  the  suit,  are  in  themselves  evidence  against  him 
in  the  suit,  and  if  a  counsel  chooses  to  ask  a  witness  as  to  any- 
"•'^"  thing  which  may  have  been  said  by  an  adverse  party,  the  counsel 
for  that  party  has  a  right  to  lay  before  the  Court  the  whole  which  was 
said  by  his  client  in  the  same  conversation, — not  only  so  much  as  may 
explain  or  qualify  the  matter  introduced  by  the  previous  examination, 
but  even  matter  not  properly  connected  with  the  part  introduced  upon 
the  previous  examination,  provided  only  that  it  relate  to  the  subject- 

4 — Compare  the   authorities  cited  in  W.,  §§2108-2110. 


No.  210,  VERBAL    COMPLETENESS.  Id^ 

matter  of  the  suit;  because  it  would  not  be  just  to  take  part  of  a  con- 
versation as  evidence  against  a  party  without  giving  to  the  party  at  the 
same  time  the  benefit  of  the  entire  residue  of  what  he  said  on  the  same 
occasion." 


PRINCE  V.  SAMO   (1838). 

y  A.  &  E.  62;. 

Denman,  L.  C.  J. :  "This  was  an  action  for  maUcious  arrest  on  a 
false  suggestion  that  money  was  lent  by  defendant  to  plaintiff,  when  it 
had  been  in  fact  given.  The  plaintiff  called  his  attorney  as  a  wit- 
ness;  he  happened  to  have  been  present  at  the  trial  of  a  prosecu- 
tion for  perjury  instituted  by  the  plaintiff  against  a  witness  in  the  action 
wherein  he  had  been  arrested.  The  defendant's  counsel  inquired  of  him, 
in  cross-examination,  whether  the  plaintiff  had  not,  on  the  trial  for  per- 
jury, stated  that  he  himself  had  been  insolvent  repeatedly,  and  remanded 
by  the  Court.  This  question  was  not  objected  to.  On  his  re-examination, 
the  same  witness  was  asked  whether  plaintiff  had  not  also  on  that  occa- 
sion, given  an  account  of  the  circumstances  out  of  which  the  arrest  had 
arisen,  and  what  that  account  was,  for  the  purpose  of  laying  before  the 
jury  proof  that  the  arrest  was  without  cause,  and  malicious,  of  both 
which  facts  there  was  scarcely  any,  if  any,  evidence  whatever.  This 
question,  expressly  confined  to  that  purpose,  was  whether  plaintiff  did 
not  say,  in  the  course  of  his  examination,  that  the  money  was  given, 
and  not  lent.  To  this  question  the  defendant's  counsel  objected,  not 
on  account  of  its  leading  form,  but  because  the  defendant's  having 
proved  one  detached  expression  that  fell  from  the  plaintiff  when  a 
witness  does  not  make  the  whole  of  what  he  then  said  evidence  in  his 
own  favour.  My  opinion  was  that  the  witness  might  be  asked  as  to 
everything  said  by  the  plaintiff,  when  he  appeared  on  the  trial  of  the 
indictment,  that  could  in  any  way  qualify  or  explain  the  statement  as 
to  which  he  had  been  cross-examined,  but  that  he  had  no  right  to  add 
any  independent  history  of  transactions  wholly  unconnected  with  it.  .  .  . 
Upon  the  whole,  we  think  it  must  be  taken  as  settled  that  proof  of  a 
detached  statement  made  by  a  witness  at  a  former  time  does  not  authorize 
proof  by  the  party  calling  that  witness  of  all  that  he  said  at  the  same 
time,  but  only  of  so  much  as  can  be  in  some  way  connected  with  the 
statement  proved.  .  .  .  We  cannot  assent  to  [the  above  passage  of  the 
opinion  in  The  Queen's  Case].  We  will  merely  observe  that  it  was 
not  introduced  as  an  answer  to  any  question  proposed  by  the  House  of 
Lords,  and  may  therefore  be  strictly  regarded  as  extrajudicial :  that  it 
was  not  necessary  as  a  reason  for  the  answer  to  the  question  that  was 
proposed ;  that  it  was  not  in  terms  adopted  by  Lord  Eldon  or  any  of  the 
other  Judges  who  concurred;  that  it  was  expressly  denied  by  Lords 
Redesdale  and  Wynford;  and  that  it  does  not  rest  on  any  previous 
authoritv." 


200  QUANTITATIVE   RULES.  No.  212. 

ATHERTON    v.   DEFREEZE    ,;i902). 

129  Mich.  364,  88  N.  W.  886. 

Title  to  horses;  a  witness  for  the  plaintiff  testified  to  the  defendant's 
admission  that  the  horses  were  not  his ;  on  cross-examination  by  the 
defendant's  attorney,  the  witness,  in  reply  to  the  question,  "What 
^^  else  did  he  say  ?"  said :  "He  said  he  was  so  blind  he  couldn't  see ; 
and  I  asked  him  about  how  much  the  colts  were  worth,  and  he  said 
about  $300,  and  if  he  didn't  get  them  he  would  go  to  the  poor-house." 
Grant^  J. :  "Parts  of  a  conversation^  having  no  reference  whatever  to 
the  issue  upon  trial,  are  not  admissible  under  the  rule  that  a  party  is 
entitled  to  the  entire  conversation.  The  rule  means  only  that  he  is 
entitled  to  the  entire  conversation  bearing  upon  the  subject  in  contro- 
versy. Ten  subjects  may  be  talked  about  in  one  conversation.  When 
one  of  the  ten  is  the  subject  of  litigation,  it  is  not  competent  to  put  in 
evidence  the  conversation  about  the  other  nine.  Defendant's  blindness 
and  poverty  had  nothing  to  do  with  the  title  to  the  property."^ 


DEWEY  V.  HOTCHKISS   (1864). 

50  N.  Y.  497,  502. 

Action  for  the  price  of  goods  sold  and  delivered.  The  plaintiff's 
clerks  proved  from  his  account-books  items  amounting  to  $1,269.72. 
The  defendant  having,  on  the  cross-examination,  shown  that  the 
'^•^'*  books  so  produced,  were  the  plaintiff's  books  of  original  entry, 
read  therefrom  certain  items  of  credit,  amounting  to  $152.09;  and  the 
plaintiff's  counsel,  thereupon,  offered  to  read  from  the  said  books,  other 
charges  against  the  defendant,  which  had  not  been  proved  by  the 
plaintiff's  witnesses.  The  defendant  objected  to  the  reading  of  these 
entries,  but  the  referee  overruled  the  objection,  and  an  exception  was 
taken.  Hogeboom,  J. :  "The  plaintiff's  account-books,  it  is  conceded, 
were  properly  in  evidence.  In  connection  with  the  oral  testimony  of 
the  clerks,  they  established  the  larger  part  of  the  plaintiff's  claim.  Be- 
ing in  evidence,  the  defendant  availed  himself  of  them,  to  prove  thereby 
credits  in  his  own  favor.  There  were  equally  well  established,  whether 
they  were  in  the  plaintiffs'  handwriting  or  not.  The  plaintiffs  had 
brought  them  forward  as  their  books,  claiming  for  them  authenticity 
and  credit,  and  could  not  deny  their  admissibility  and  force,  even  when 
they  operated  against  themselves.  In  using  them  for  his  purpose,  the 
defendant  apparently  traveled  over  their  entire  contents,  selecting  his 
items  wherever  he  pleased,  without  reference  to  dates  or  subject-matter, 
or  their  connection  or  relation  to  the  charges  read  by  the  plaintiffs. 
Thus,  he  selected  from  the  day-books  three  different  items,  each  of  con- 

5 — Compare  the  authorities   cited   in   W.,  §§2113-2116. 


No.  214.  VERBAL    COMPLETENESS.  201 

siderable  amount,  of  the  respective  dates  of  2d  May  1848,  226.  March 
1S49,  and  27th  October  1849.  He  selected  from  the  cash-book  eight 
different  items,  ranging  between  the  dates  of  21st  July  1848,  and  19th 
November  185 1.  He  had,  therefore,  used  the  whole  of  the  books  in- 
differently for  his  purpose.  He  had  taken  the  entire  account  between 
the  plaintiffs  and  the  defendant,  adopted  it  for  his  own  benefit,  and 
was  not,  I  think,  at  liberty  to  renounce  it,  where  it  made  against  him. 
.  .  .  The  books  constituted  one  entire  series  of  accounts  between  these 
parties,  and,  for  the  purpose  of  this  case,  may  be  regarded  as  if  they 
contained  nothing  else  whatever — indeed,  as  if  they  had  all  been  pre- 
sented in  court  by  the  plaintiffs  on  a  single  paper  or  account  current. 
In  such  case  could  the  defendant  be  permitted  to  cull  particular  entries 
from  the  account  and  exclude  the  residue?  I  think  not.  The  rule  that 
a  party  whose  oral  declarations,  in  a  conversation  are  improved  in 
evidence  by  his  adversary,  is  not  thereby  permitted  to  introduce  in  his 
own  favor  disconnected  portions  of  the  same  conversation  having  refer- 
ence to  distinct  and  independent  matters,  has  no  close  application  to 
such  a  case;  ist.  Because  the  account  must  be  regarded  as  the  single, 
entire  and  continuous  statement  of  the  party  offering  it,  presenting  his 
version  of  the  true  state  of  the  business  transactions  between  the  par- 
ties,— not  necessarily  entitled  to  credit  in  every  part,  if  discredited  by 
other  evidence,  but  admissible  for  the  consideration  of  the  jury ;  2d, 
Because  the  defendant,  having  adopted  the  whole  statement  by  ranging 
through  its  entire  scope  and  contents,  has  given  currency  to  the  whole, 
and  has  made  it  necessary  to  examine  and  take  in  the  whole,  in  order 
to  determine  how  far  the  portions  rejected  by  him  bear  upon,  affect,  or 
qualify  the  portions  selected.  There  is  no  evidence  that  the  portions  of 
the  account  introduced  by  the  plaintiff,  after  those  introduced  by  the 
defendant,  do  not  materially  qualify  the  effect  of  the  latter  items,  and 
do  not  in  fact  relate  to  the  same  precise  subject-matter."^ 


CALVERT  V.  FLOWER   (1836). 

r  C.&  P.  386. 

Mr.  Kelly,  for  the  defendant,  having  called  for  the  plaintiff's  ledger, 
due  notice  to  produce  having  been  given,  Mr.  Campbell,  for  the  plaintiff, 
said:  "I  will  produce  it,  if  it  is  called  for  as  your  evidence";  Mr. 
^  Kelly:  "I  call  for  it,  but  subscribe  to  no  condition";  Denm.\n, 
L.  C.  J.:  "If  it  is  produced  and  given  to  Mr.  Kelly,  it  will  be  for  me 
to  decide  whether  Mr.  Kelly  makes  such  use  of  it  as  will  compel  him  to 
use  it  as  his  evidence."  The  book  was  produced,  and  Mr.  Kelly  turned 
over  several  pages  of  it,  so  as  to  look  at  the  contents  of  them.  Denman, 
L.  C.  J.:  "I  ought  now  to  say  that  if  Mr.  Kelly  looks  at  the  book,  he 
will  be  bound  to  put  it  in  as  his  evidence";  Mr.  Kelly:  "Certainly.  I 
am  fully  aware  that  I  must  do  so";  Denman,  L.  C.  J.:  "I  have  men- 

6 — Compare  the  authorities  cited   in   W.,  §5  2ii8->iiO. 


202  QUANTITATIVE   RULES.  No.  214. 

tioned  this  because  it  has  been  supposed  by  some,  that  an  opposite  coun- 
sel may  look  at  the  papers  or  books  called  for  under  a  notice  to  produce, 
and  then  not  use  them."^ 


SUB-TITLE  IV. 
AUTHENTICATION  OF  DOCUMENTS. 

HORNE  TOOKE'S  TRIAL   (1794). 
25  How.  St.  Tr.  78. 
High  treason.     A  book  purporting  to  be  the  minutes  of  the  Constitu- 
tional Society,  at  a  meeting  of  March  28,  1794,  with  Mr.  Tooke  as  chair- 
man, was  offered  to  be  read  by  the  prosecution,  after  some  evl- 
dence  of  the  handwriting: 

Mr.  Tooke:  "Is  the  insertion  of  my  name  in  that  book  ev'dence  of 
my  being  present  at  the  time?" 

Lord  Chief  Justice  Eyre:  "It  is  certainly  evidence  to  go  to  the 
Jury  of  your  being  present." 

Mr.  Tooke:  "My  name  being  found  in  any  book!  that  will  be  the 
most  extraordinary  evidence  I  ever  heard  of;  the  bulk  of  the  trash  that 
is  to  be  found  in  that  book  I  never  saw  or  heard  of  before ;  but  that 
every  time  that  my  name  is  to  be  found  in  the  book,  that  that  is  to  be 
evidence  that  I  was  present  is  a  most  extraordinary  proposition ;  if  I 
wrote  my  name  in  the  book,  that  would  be  evidence  that  I  was  there 
when  I  wrote  it,  but  my  name  being  written  in  a  book  does  not  prove 
my  being  there  when  it  was  wrote.  ...  If  this  evidence  were  to  be 
admitted  in  a  charge  of  high  treason,  and  it  should  therefore  follow  that 
I  partake  of  whatever  is  over  or  under  my  name,  it  would  be  the  most 
extraordinary  evidence  that  ever  was  admitted  in  a  court  of  justice." 

Lord  Chief  Justice  Eyre  :  "You  are  perfectly  right,  if  the  state 
of  the  evidence  depended  entirely  upon  your  name  being  found  in  a 
book  in  possession  of  a  Daniel  Adams ;  undoubtedly,  in  order  to  prove 
your  being  present  at  these  meetings,  they  must  go  a  great  deal  farther 
— they  must  show  that  these  are  the  books  of  the  society,  they  must 
give  probable  evidence  that  these  were  books  which  you  had  access  to, 
which  you  acted  upon,  and  that  you  gave  credit  to  the  entries  that  were 

7 — Bartlett,  J.,  in  Austin  v.  Thomson,  45  stated  entirely  fails;  and  we  see  no  suf- 
N.  H.  113,  117  (1863):  "The  only  rea-  ficient  reason  for  a  rule  that  is  at  vari- 
son  given  for  the  supposed  rule  is  [the  ance  with  the  general  course  of  our  prac- 
unconscionable  advantage  of  prying  with-  tice  and  that  can  hardly  facilitate  the  ad- 
out  responsibility].  .  .  .  But  as  the  ministration  of  justice,  since  if  it  has  any 
party  notified  is  not  obliged  to  produce  the  practical  effect  in  addition  to  the  rules  for 
papers,  and  as  he  may  if  he  produce  them  the  admission  of  competent  evidence,  it 
decline  to  allow  them  to  be  examined  ex-  must  be  to  compel  the  Court  to  allow 
cept  upon  condition  that  if  examined  they  incompetent  evidence  to  go  to  the  jury." 
shall  be  read  in  evidence,  parties  notified  Compare  the  authorities  cited  in  W.,  % 
seem  amply  protected  from  any  such  un-  2125. 
conscionable    advantage,    and     the      reason 


No.  216.  AUTHENTICATION  OF  DOCUMENTS.  203 

in  it  by  some  conduct  of  yours.    This  is  only  one  step  toward  the  evi- 
dence, to  fix  you  with  being  a  person  present  at  this  meeting." 

Mr.  (later  L.  C.)  Erskine,  arguing  against  the  reading  of  the  trea- 
sonable paper:  "Would  it  be  said  that  this  should  be  read  as  evidence 
against  the  prisoner  before  his  connexion  with  it  is  proved  to  have  had 
an  existence?  I  take  the  reason  of  that  to  be  this — and  I  take  the  reason 
of  it  to  be  founded  in  great  wisdom,  in  that  which  in  my  opinion  forms 
the  glory  of  the  English  law  in  all  its  parts,  in  an  acquaintance  with 
the  human  character,  in  the  recognition  of  all  that  belongs  to  the  prin- 
ciples of  the  human  mind,  in  the  recollection  of  our  wise  ancestors  that 
men  are  not  angels,  that  they  carry  about  them  (and  your  lordships 
even  carry  about  you)  all  the  infirmities  of  humanity,  and  that  is  there- 
fore shall  not  be  permitted  to  make  a  strong  impression  upon  the  minds 
of  men  by  reading  matters  at  which  .  .  .  the  mind  of  man  revolts,  and 
so  in  the  course  of  a  long  trial  the  jury  afterwards  cannot  discharge 
from  their  recollection  what  they  have  heard.  They  do  not  remember 
with  precision  whether  that  which  was  read  was  brought  home  to  the 
prisoner;  and  then  they  mix  up  in  their  imagination  and  recollection 
matters  which  they  may  disapprove  with  disapprobation  of  the  person 
vrho  is  on  trial  before  them.  I  take  that,  with  humility  to  be  the 
principle.  ...  It  must  first  of  all  be  brought  home  to  the  person  who 
is  to  be  affected  by  it,  before  it  is  suffered  to  be  read;  for  after  it  is 
read,  the  effect  is  had,  and  that  is  the  danger  I  complain  of."  L.  C.  J. 
Eyre:  "If  the  question  is  whether  it  is  now  to  be  read,  I  think  the 
objection  is  good.  If  the  question  is  whether  it  is  evidence  admissible, 
not  yet  to  be  read,  but  to  be  read  or  not  as  other  evidence  shall  bring 
the  matter  of  it  sufficiently  home  to  the  prisoner,  then  the  objection  is 
ill-founded." 


STAMPER  V.  GRIFFIN  (1856). 
20  Ga.  S12,  320. 
Benning,  J. :    "No  writing  can  be  received  in  evidence  as  a  genuine 
writing  until  it  has  been  proved  to  be  a  genuine  one,  and  none  as  a 
forgery  until  it  has  been  proved  to  be  a  forgery.     A  writing,  of 
^•^         itself,  is  not  evidence  of  the  one  thing  or  of  the  other.    A  writing, 
of  itself,  is  evidence  of  nothing,  and  therefore  is  not,  unless  accompanied 
by  proof  of  some  sort,  admissible  as  evidence."* 

8 — Jeremy     Bentham,     Rationale    of    Ju-  sumed,    or    so   much    as    suspected,    without 

dicial  Evidence,   b.  vii,   c.  in    (1827),  Bow-  special     ground,     in    any    single      instance; 

ring's  ed.,   vol.    vii,   p.    179:      "When    from  much    less    in    1    number    of    unconnected 

an    individual    more    or   less    known    to    me  instances." 

in    person    or    by    reputation,    I    receive    a  Branson,    C.    J.,    in    Wilhon    v.    Belts,    4 

letter,  bearing  his  signature — that  is,   when  Den.    201,    213    (1847):      "In   the   ordinary 

I    receive    a    letter    with    a    signature    pur-  affairs    of   men,    it   is    very    often   assumed, 

porting   to   be   that   of  a   person    known   to  without    proof,    that    he    whose    name    has 

me    as    above, — on    what    supposition    can  been  affi.xed  to  a  written  instrument  placed 

such     a    letter    have    emanated     from    any  it    there    himself.      But    when    the    signing 

other   hand    than    his?      On   no   other    than  becomes   a   matter    of   legal    controversy,    it 

that    of    forgery, — a  crime   not   to   be   pre-  must  be  established  by  proof." 


204  ULANTITATIVE    RULES.  No.  217. 

SIEGFRIED  V.  LEVAN  (1820). 
6  S.  &  R.  308,  311. 
Duncan,  J.:  "This  was  an  action  for  debt  on  bond;  the  plea,  non 
est  factum.  The  plaintiff  gave  evidence,  as  stated  in  the  bill  of  excep- 
tions, and  then  offered  the  bond  (of  which  he  had  made  profert 
^^*  and  given  oyer)  to  the  jury  in  evidence;  this  was  objected  to, 
and  the  court  sustained  the  objection,  and  would  not  suffer  the  bond  to 
be  read  in  evidence.  The  exception  to  be  considered  is  to  this  opinion 
of  the  court.  .  .  .  The  mistake  arises  from  supposing  that  the  court, 
in  suffering  the  deed  to  go  in  evidence  to  the  jury,  decide  the  issue; 
nothing  can  be  more  unfounded.  .  .  .  All  that  is  done  by  the  Court,  in 
admitting  the  deed  in  evidence,  is  this,  that  if  the  execution  of  the  deed 
is  proved  by  the  subscribing  witness,  the  party  has  made  out  a  prima 
facie  case,  not  a  conclusive  one,  or,  in  cases  where  recourse  is  had  to 
the  secondary  evidence,  the  collateral  proof  is  such  that  a  jury  might 
presume  [i.  e.  infer]  the  execution ;  and  then  these  facts  are  submitted 
to  the  jury  to  exercise  their  own  judgment,  to  draw  their  own  conclusion 
of  the  sealing  and  delivery.  ...  If  the  bond  is  proved  by  the  subscribing 
witness,  it  is  read  in  evidence.  Why?  Not  because  the  Court  pro- 
nounce, by  admitting  it  in  evidence,  that  it  is  the  deed  of  the  party;  but 
because  the  party  has  given  evidence  of  its  execution.  So,  where  the 
execution  is  to  be  made  out  by  facts  and  circumstances,  it  is  admitted, 
not  because  the  Court  draw  any  conclusion  of  the  fact  in  issue,  but 
because  sotne  evidence  is  offered  from  which  the  jury  might  presume 
\i.  e.  infer]  the  fact  in  issue,  the  sealing  and  delivery  of  the  bond.  If 
there  be  no  evidence  of  the  execution,  the  Court  will  not  permit  the  bond 
to  be  read  in  evidence.  But  if  there  be  any  fact  or  circumstance  tend- 
ing to  prove  the  execution  or  from  which  the  execution  might  be  pre- 
sumed, then  like  other  presumpti"Ve  evidence  it  is  open  for  the  decision 
of  the  jury." 


^MoDEs  OF  Authenticating  Documents.  "Some  of  the  various 
possible  modes  of  proving  a  document's  genuineness  are,  of  course, 
never  questioned  to  be  sufficient  to  entitle  it  to  go  to  the  jury. 
218  Those  about  which  question  has  arisen  are  only  certain  kinds  of 
circumstantial  evidence.  It  will  be  necessary  therefore  to  eliminate  at 
the  outset  the  kinds  of  evidence  as  to  which  there  is  no  dispute  from 
the  present  point  of  view. 

"Evidence  may  be  of  three  different  sorts ;  namely,  'real  evidence,' 
testimonial  evidence,  and  circumstantial  evidence. 

"(i)  Autoptic  proference  (or  'real  evidence'),  occurs,  for  the  execu- 
tion of  writings,  when  the  act  of  zuriting  is  done  in  the  presence  of  the 
tribunal.     The  sufficiency  of  this  is  plain. 

"(2)  Testimonial  evidence  is  always  regarded  as  sufficient;  the  only 

I — Quotef3   from   W.,   §   2131. 


No.  219.  AUTHENTICATION   OF  DOCUMENTS.  205 

questions  being  the  ordinary  ones  as  to  the  qualifications  of  the  witness 
by  knowledge.^  Ordinary  admissions  of  a  party  are  a  sort  of  evidence 
always  regarded  as  sufficient  to  admit  a  document  to  the  jury,  but  they 
are  to  be  distinguished  from  judicial  admissions.^ 

"(3)  Circumstantial  evidence  is  of  various  sorts;  and  first,  of  those 
not  here  involved: 

"(a)  Style  of  handivriting,  i.  c.  similarity  between  that  of  the  docu- 
ment and  that  of  the  person  alleged  as  its  maker,  is  a  sort  of  circum- 
stantial evidence  undisputed  in  its  sufficiency;  the  controversies  have 
arisen  over  the  proper  modes  of  proving  the  fact  of  similarity.* 

"(6)  Sundry  circumstances  preceding  or  following  the  act  of  writing 
may  be  appealed  to  as  evidence.  For  example,  if  an  unsigned  writing 
is  left  in  a  room  with  pen  and  ink,  and  Doe  goes  alone  into  the  room, 
then  comes  out  with  fresh  ink-marks  on  his  hand,  and  the  writing  is  then 
found  to  bear  his  name  in  signature,  this  would  be  regarded,  no  doubt, 
as  sufficient  evidence  to  go  to  the  jury;  it  is  the  same  sort  of  evidence 
that  might  be  used  to  prove  a  murder  or  any  other  act  done  in  that 
room.^  For  evidence  of  this  sort  there  seem  to  be  no  specific  rules  of 
sulificiency. 

"(c)  The  remaining  sorts  of  circumstantial  evidence  are  those  which 
give  rise  to  quantitative  rulings  of  sufficiency.  They  consist  of  groups 
of  circumstances,  each  by  itself  perhaps  insufificient,  but  all  combined 
amounting  in  common  experience  to  a  sufficiency.  They  fall,  roughly, 
under  four  heads:  (A)  age;  (B)  contents;  (C)  custody;  (D)  signature 
or  seal." 


PEARCE  V.  HOOPER  (1810). 

J  Taunt.  60. 

Trespass  for  breaking  and  entering  the  plaintiff's  close,  called  Cold- 
rinick  Wood,  and  cutting  down  the  coppice  and  underwood  there  grow- 
ing, and  seizing,  taking,  and  carrying  away  the  same.  The  de- 
fendant pleaded  not  guilty.  The  defendant  gave  notice  to  the 
plaintiff  to  produce,  upon  the  trial,  the  indenture  of  lease  and  release, 
wherein  the  vendor  had  conveyed  to  him  Coldrinick  estate,  by  a  de- 
scription limited  to  a  specific  number  of  acres,  which  would  necessarily 
exclude  Coldrinick  Wood.  The  plaintiff  accordingly  produced  these 
deeds;  but  the  defendant  not  being  prepared  with  the  attesting  wit- 
nesses to  prove  the  execution  of  them,  it  was  contended  on  the  part  of 
the  plaintiff',  that  without  such  proof  they  could  not  be  received  in  evi- 
dence. On  the  other  hand,  the  defendant  contended,  that  since  these 
instruments  came  out  of  the  hands  of  the  plaintiff,  under  a  notice  to 
produce  them,  and  contained  his  title  to  the  premises  (if  he  had  any 
title),  it  must  be  considered  that  further  proof  of  the  execution  of  them 

2— Ante,    Nos.    83-85.  4 — Post.    Nos.   427-433. 

3 — Poft,   N'os.   219,  646.  5 — Ante,    No.    32. 


206  QUANTITATIVE   RULES.  No.  219. 

was  unnecessary.  Graham,  B.,  was  inclined  to  receive  the  evidence, 
but,  upon  the  authorities  cited,  rejected  it,  reserving  the  point;  and  the 
jury  found  a  verdict  for  the  plaintiff. 

Mansfield,  C.  J. :  "There  can  be  no  doubt  in  this  case.  The  mere 
possession  of  an  instrument  does  not  dispense  with  the  necessity  which 
lies  on  the  party  calling  for  it,  of  producing  the  attesting  witness;  an 
instance  is  properly  put  in  the  case  of  a  will,  cited  in  Gordon  v.  Secretan 
[8  East,  548],  as  having  been  tried  before  Lord  Kenyon:  for,  supposing 
that  an  heir-at-law  is  in  possession  of  a  will,  and  the  devisee  brings  an 
ejectment,  and  calls  on  the  heir  to  produce  the  will;  there  the  heir 
claims,  not  under  the  will,  but  against  the  will,  and  it  would  be  very 
hard  that  the  will  should  be  taken  to  be  proved  against  him,  because 
he  produces  it.  But  that  is  very  different  from  the  case  where  a  man 
is  called  on  to  produce  the  deed  under  which  he  holds  an  estate.  The 
plaintiff  has  no  interest  in  the  fee-simple  of  the  estate,  if  this  deed  does 
not  convey  it ;  consequently,  if  he  produces  the  deed  under  which  he 
claims,  shall  it  not  be  taken  to  be  a  good  deed  so  far  as  relates  to  the 
execution,  as  against  himself?  There  must  necessarily,  therefore,  be  a 
new  trial  in  this  cause."® 


(A)     AUTHENTICATION  BY  AGE. 

MEATH    v.    WINCHESTER    (1836). 

5  Bing.  N.  C.  18^,  200. 

TiNDAL,  C.  J.:  "The  first  and  second  questions  proposed  by  your 
lordships  to  his  majesty's  judges  are  these: — In  quare  impedit  to  re- 
cover the  presentation  to  the  church  of  K.,  the  advowson  whereof 
is  claimed  to  be  part  of  the  temporalities  of  the  Bishop  of  M., 
a  deed  was  offered  in  evidence  purporting  to  be  brought  from  the  cus- 
tody particularly  described  in  the  bill  of  exceptions  to  which  we  are 
referred  by  your  Lordships;  and  also  a  case,  purporting  to  be  a  case 
stated  for  the  opinion  of  counsel  on  the  part  of  a  former  Bishop  of  M., 
and  brought  from  the  same  custody;  and  whether  such  deed  and  such 
case  were  respectively  admissible  in  evidence  against  the  successors  to 
the  Bishop  of  M.  in  that  see,  are  the  first  and  second  questions  pro- 
posed to  us  by  your  lordships.  With  your  lordships'  permission  we  shall 
reverse  the  order  of  considering  the  two  questions,  and  give  our  answer, 
first  to  the  question,  whether  the  case  was  admissible  in  evidence;  for 
as  the  deed  and  the  case  were  found  at  the  same  time,  by  the  same  per- 
sons, at  the  same  place,  and,  indeed,  in  the  very  same  parcel  of  papers, 
the  question  of  admissibility,  so  far  as  it  depends  upon  the  custody,  is 
precisely  the  same  with  respect  to  both.  .  .  .  Both  the  documents  to 
which   exceptions   have  been  taken  were   found  tied  up  together  with 

6 — Compare   the  authorities  cited  in   W.,       admissions    by    failure    to    plead    in    denial 
§§   1297,    1298,   and   the   doctrine  of  judicial        (post,   No.   646). 


No.  221.  AUTHENTICATION   OF  DOCUMENTS.  207 

Other  papers  relating  to  the  see,  in  a  house  called  Lowton  House, 
which  was  the  family  mansion  of  the  Doppings,  that  is,  the  mansion 
house  of  the  family  of  which  Anthony  Dopping,  formerly  Bishop  of 
Meath,  was  one  member,  and  of  which  the  witness  who  gave  the  testi- 
mony was  another :  that  this  house  was  occupied  by  a  member  of  the 
Dopping  family  at  the  time  the  papers  were  found  there :  and,  lastly, 
that  it  was  the  house  in  which  the  Dopping  family  papers  were  kept.  .  .  . 
It  is  the  proper  and  necessary  intendment  that  there  is  nothing  upon  the 
face  or  in  the  condition  of  the  documents  themselves  which  excites  sus- 
picion as  to  their  genuineness ;  for  in  this  stage  of  the  proceedings  credit 
must  be  given  to  the  Court  below  that  they  would  not  have  allowed  the 
documents  to  be  read  if  they  had  borne  upon  their  face  or  in  their  condi- 
tion any  evidence  against  their  admissibility.  The  result  of  the  evi- 
dence, upon  the  bill  of  exceptions,  we  think  is  this, — that  these  docu- 
ments were  found  in  a  place  in  which  and  under  the  care  of  persons 
with  whom  papers  of  Bishop  Dopping  might  naturally  and  reasonably 
be  expected  to  be  found ;  and  that  is  precisely  the  custody  which  gives 
authenticity  to  documents  found  within  it ;  for  it  is  not  necessary  that 
they  should  be  found  in  the  best  and  most  proper  place  of  deposit.  If 
documents  continue  in  such  custody,  there  never  would  be  any  question 
as  to  their  authenticity.  But  it  is  when  documents  are  found  in  other 
than  the  proper  place  of  deposit  that  the  investigation  commences  whether 
it  was  reasonable  and  natural  under  the  circumstances  in  the  particular 
case  to  expect  that  they  should  have  been  in  the  place  where  they  are 
actually  found.  For  it  is  obvious  that  whilst  there  can  be  only  one 
place  of  deposit  strictly  and  absolutely  proper,  there  may  be  various  and 
many  that  are  reasonable  and  probable,  though  differing  in  degree,  some 
being  more  so,  some  less.  And  in  those  cases  the  proposition  to  be 
determined  is  whether  the  actual  custody  is  so  reasonably  and  probably 
to  be  accounted  for  that  it  impresses  the  mind  with  the  conviction  that 
the  instrument  found  in  such  custody  must  be  genuine." 


MIDDLETON  v.  MASS    (1819). 

2  N.  &  McC.  55. 

This  was  an  action  of  trespass,  to  try  the  title  to  a  tract  of  land 
originally  granted  to  Wm.  Bull,  in  1737.  The  grant  to  Bull  was  pro- 
duced on  the  part  of  the  plaintiff,  and  he  then  offered  in  evidence 
""^  a  deed  from  Bull  to  James  Oglethorpe,  under  whom  he  claimed, 
and  from  whom  he  deduced  a  title,  dated  in  1739,  which  had  been 
proved  before  a  magistrate,  and  recorded  in  the  auditor's  office,  a  few 
days  after  its  execution ;  but  he  offered  no  proof  of  its  execution,  nor 
did  he  prove  any  possession  of  the  land,  or  any  act  of  ownership  over  it, 
by  himself  or  any  other  person,  through  or  from  whom  he  deduced  his 
title:  so  that  the  question  was,  whether  it  was  admissible  as  an  ancient 
deed,  without  proof  of  its  execution?     The  presiding  judge  being  of 


208  QUANTITATIVE   RULES.  No.  221. 

opinion  that  it  was  not,  the  plaintiff  then  offered  to  prove  that  the  deed 
had  been  in  the  possession  of  himself  and  those  under  whom  he  claimed, 
for  more  than  thirty  years,  and  contended  that  it  ought  to  be  admitted 
on  this  proof;  but  the  Court  thought  otherwise,  and  the  plaintiff  was 
nonsuited.  A  motion  was  now  made  to  set  aside  the  nonsuit,  on  the 
ground  that  the  deed  ought  to  have  been  received  in  evidence,  as  an 
ancient  deed,  on  proof  of  the  possession  of  the  deed,  alone,  for  the  time 
mentioned. 

Johnson^  J.:  "Until  this  case  occurred,  I  did  not  suppose  that  this 
question  admitted  of  any  doubt;  for  the  converse  of  the  proposition 
contained  in  the  motion,  is  certainly  recognized  in  the  case  of  Thomp- 
son V.  Bullock,  I  Bay,  357,  and  the  practice  so  far  as  I  have  been  con- 
versant with  it,  accords  with  that  view  of  it.  .  .  .  Independent,  how- 
ever, of  authority,  it  appears  to  me  the  reason  and  propriety  of  the 
rule  is  apparent,  and  the  more  so  from  the  only  reason  which  I  have 
seen  in  opposition  to  it.  It  is  because  old  things  are  hard  to  be  proved. 
Now,  if  this  be  a  good  reason,  it  operates  with  a  twofold  force  on  the 
opposite  side  of  this  question:  for  it  is  certainly  more  difficult,  to  say 
the  least  of  it,  to  disprove  an  old  thing  than  to  prove  it,  especially  when 
in  most  cases  the  party  would  be  called  on  to  do  so  without  notice  of  its 
antiquity  or  the  necessity  of  doing  it.  .  .  .  No  such  indulgence  [as  to 
presume  due  execution]  is  due  to  him  who,  as  in  the  present  case,  neg- 
lects for  almost  a  centur}'^  to  assert  his  claim,  by  one  single  act  of  own- 
ership. The  doctrine  contended  for  on  the  part  of  the  motion  might  in 
its  consequences  be  productive  of  incalculable  mischiefs ;  for,  although 
it  is  not  now  usual  to  enter  upon  a  course  of  villainy  the  fruits  of  which 
are  not  to  be  reaped  for  thirty  years  to  come,  yet  establish  the  rule  con- 
tended for,  and  it  opens  the  door,  and  many  will  no  doubt  find  an  easy 
entry.'"^ 


(B)     AUTHENTICATION  BY  CONTENTS. 

SINGLETON  v.  BREMAR   (1824). 

Harp.  201,  2og. 

Action  on  promissory  notes  made  by  F.  Bremar  to  Tabitha  Singleton; 
defence,  that  they  were  void  because  given  in  consideration  of  unlawful 

cohabitation.     The  plaintiff's  mother  was  known  as  Lucy  Sorrel. 

With  a  view  to  the  introduction  of  certain  letters,  the  defendant 
then  read  the  evidence  of  Mr.  Glover,  which  showed  that  Bremar  was 

7 — Daniel,  J.,  in  Caruthers  v.  Eldridge,  from  other  circumstances  the  existence  of 
12  Gratt.  670,  687  (1855):  "A  presump-  which  is  equally  inconsistent  with  any 
tion  may  be  the  result  of  a  single  circum-  other  hypothesis  than  that  of  the  genuine- 
stance  or  oi  many  circumstances.  Why  ness  of  the  instrument?  The  direct  evi- 
say  that  in  the  case  of  an  ancient  deed  dences,  the  positive  proofs  by  which  the 
there  must  be  a  departure  from  the  gen-  execution  of  the  deed  is  established,  be- 
eral  rule  in  respect  to  presumptions,  and  ing  no  longer  attainable,  and  the  rule 
that     its     authenticity    may      be      presumed  which    requires    their    production    being   dis- 


No.  223.  AUTHENTICATION   OF  DOCUMENTS.  209 

accustomed  to  take  out  of  the  office  at  Orangeburg,  letters  with  a  pri- 
vate mark;  and  proved  that  the  letters  now  offered,  having  such  a  mark, 
had  also  the  post-office  stamp,  and  were  found  among  Mr.  Bremar's 
papers.  The  defendant  submitted  the  letters  themselves,  to  show  by  the 
internal  evidence,  that  they  were  the  letters  of  the  plaintiff;  although 
she  cannot  write,  and  the  letters  were  not  signed,  and  the  handwriting 
not  identified.  The  internal  evidence  was  found,  in  the  language  of 
jealousy  towards  Mr.  Bremar's  wife;  the  mention  of  Lucy  Sorrel,  and 
of  plaintiff's  brother,  and  the  importunate  tone  in  which  they  were 
written.  But  the  presiding  judge  refused  to  look  at  the  contents,  and 
the  letters  were  rejected  for  want  of  proof  of  the  handwriting. 

NoTT,  J. :  "The  usual  method  of  proving  an  instrument  of  writing, 
where  there  is  no  subscribing  witness,  is  by  proof  of  handwriting.  But 
that  could  not  be  expected  in  this  case,  as  the  party  cannot  write.  Even 
if  her  name  had  been  subscribed  to  the  letters,  the  difficulty  would  have 
been  lessened.  Some  other  method  must  therefore  be  resorted  to,  and 
why  not  the  letters  be  looked  into?  If  they  furnish  internal  evidence 
of  the  source  from  whence  they  were  derived,  I  can  see  no  reason  why 
we  may  not  avail  ourselves  of  that  evidence.  Thus,  for  instance,  if 
they  relate  to  facts  which  cannot  be  known  to  any  other  person,  it  will 
te  presumed  that  they  were  written  by  her  authority.  If  they  embrace 
a  number  of  facts  which  relate  to  her  and  her  situation,  and  which 
cannot  apply  to  any  other  person,  each  of  those  facts  constitutes  a  link 
in  the  chain  of  circumstances  which  go  to  strengthen  the  presumption. 
In  ordinary  cases  such  evidence  will  not  be  allowed,  because  the  writing 
is  always  presumed  to  be  by  the  person  by  whom  it  purports  to  be 
written,  and  proof  of  the  handwriting  therefore  is  higher  evidence.  But 
in  the  present  case  the  evidence  oft'ered  was  the  best  which  the  nature 
of  the  case  could  afford."^ 


HOWLEY  V.  WHIPPLE  (1869). 

48  N.  H.  487. 

Issue  as  to  a  boundary  line  between  lands  of  C.  Bellows  and  Ira 
Gould.  The  defendant  attempted  to  prove  a  mutual  agreement  as  to 
the  line.  Defendants  introduced  two  witnesses  who  testified,  in 
^^^  substance,  that  ...  Ira  Gould  and  Bellows  agreed  that  the  sur- 
veyor should  go  on  and  run  out  and  establish  the  line,  and  that  they 
would  abide  by  it;  that  after  making  this  agreement  Ira  Gould  said 
he  was  obliged  to  go  to  Montreal  on  business,  but  that  his 
son     Joseph     would     remain     with     the     surveying     party,     and     that 

pensed  with,  it  seems  to  me  wholly  at  war  ticity  of  the  deed   may  be  presumed." 

with    the    spirit    of    the    law,    which    under  Compare   the   authorities   cited    in    VV.,   §§ 

such    exigency    allows    a    resort    to    circum-  2138-2141. 

stantial    or    presumptive    evidence,    to    hold  8— Compare   the   authorities  cited   in   W., 

that    a    corresponding    possession     shall     he  §§   2 149-2152. 

the   only  evidence   from   which   the  authen- 


210  QUANTITATIVE   RULES.  No.  223. 

he  would  acquiesce  in  whatever  Joseph  might  do;  and  that  Joseph 
remained  through  the  running  of  the  line.  Plaintiff  subsequently 
called  Wm.  K.  Richey,  who  testified  that,  at  the  time  which,  from 
his  description,  the  jury  might  have  found  to  be  the  time  the 
line  was  run,  he  passed  down  the  road,  and  saw  Bellows,  Joseph 
Gould,  the  surveyor,  and  others,  in  the  pasture,  engaged  in  running 
the  line;  .  .  .  that  he  saw  nothing  of  Ira  Gould  there.  Plaintiff 
then  offered  to  show  by  this  witness  that  a  telegram  was  then  sent  by 
Joseph  Gould  to  Ira  Gould  at  Montreal,  and  that  a  telegraphic  answer 
was  received  very  soon,  purporting  to  come  from  Ira  Gould,  and  to  be 
sent  from  Montreal.  The  Court  excluded  the  evidence,  and  plaintiff 
excepted. 

Sargent,  J.:  "In  Connecticut  v.  Bradish,  14  Mass.  296,  a  letter  was 
admitted,  as  evidence  against  a  party,  where  there  was  no  evidence  of 
the  handwriting,  except  the  testimony  of  a  witness  that  it  was  the  same 
he  had  received  in  reply  to  a  letter  which  he  had  addressed  to  the  same 
party,  and  this  ruling  was  sustained.  It  is  claimed  that,  as  in  the 
case  of  a  letter,  so  in  case  of  a  telegraphic  despatch,  the  person  who 
answers  a  despatch  is  so  generally  and  uniformly  the  person  to  whom 
the  communication  was  addressed  that  it  may  be  safely  acted  upon,  and 
that  it  is  thus  acted  upon  in  all  the  business  arrangements  of  the  coun- 
try. But  there  is  a  difference  in  principle  between  the  two  cases.  .  .  . 
There  is  nothing  about  the  handwriting  here  that  could  indicate  that 
the  message  came  from  Gould,  nor  is  there  anything  in  the  case  to  make 
this  message  evidence  any  more  than  there  would  be  if  Gould  had  sent 
a  verbal  message  by  one  man  who  had  communicated  it  to  another,  and 
the  latter  had  at  length  conveyed  the  message  to  the  party  for  whom  it 
was  designed  and  to  whom  it  was  originally  sent.  This  message  might 
be  received  as  it  was  sent,  and  would  ordinarily  be  acted  on  in  the 
business  of  life ;  but  the  only  way  to  prove  such  a  message  in  a  court  of 
law  would  be  to  summon  both  the  intermediate  agents  or  bearers  of  the 
message  and  in  that  way  trace  the  message  from  the  lips  of  the  one 
party  until  it  was  received  in  the  ear  of  the  other  party.  Anything 
short  of  that  would  be  to  rely  upon  hearsay  evidence  of  the  very  loosest 
character."^ 


OBERMANN  BREWING  CO.  v.  ADAMS  (1890). 

35  III.  App.  540. 

Garnett,  J. :  "This  is  a  suit  in  assumpsit  by  appellees  for  the  price 
of  liquors  alleged  to  have  been  sold  by  them  to  appellant.  From  the 
judgment  in  plaintiffs'  favor,  the  appellant  brings  this  appeal. 
224:  'pjjg  circumstances  of  the  sale  of  the  liquors  were  these:  About 
May  12,  1886,  a  man  by  the  name  of  O'Brien  went  to  appellees'  store 
and  told  Albert  L.  Smith,  one  of  the  firm,  that  he  was  authorized  by 

9 — Compare   the  authorities  cited  in  W.,  §§  2153-2154. 


No.  225.  AUTHENTICATION   OF  DOCUMENTS.  211 

appellant  to  purchase  a  stock  of  liquors  and  cigars  for  a  saloon,  which 
appellant  intended  to  open  for  him  at  194  Randolph  street,  in  Chicago, 
and  at  the  same  time  presented  a  card  upon  which  G.  J.  Obermann, 
the  vice-president  of  appellant,  had  written : 

'Th.  O'Brien  is  fitting  up  a  saloon,  No.  194  Randolph;  we  guaran- 
tee payment  for  any  fixtures  or  work  done  for  the  place,  ordered  by 
him.  J.   Obermann   Brg.  Co.' 

"While  Smith  was  talking  to  O'Brien,  Tanner,  another  of  the  ap- 
pellees, called  up  appellant  through  the  telephone.  On  the  trial  in  the 
Circuit  Court,  Tanner  was  permitted,  over  the  objection  and  exception 
of  appellant,  to  testify  to  the  conversation  he  held  through  the  tele- 
phone with  the  person  at  the  other  end  of  the  wire,  and  Smith  was 
allowed  to  testify  to  what  Tanner  said  while  at  the  telephone.  Tanner 
admitted  he  did  not  recognize  the  voice  of  the  person  who  spoke  to  him 
through  the  telephone,  as  he  never  knew  any  of  the  'people'  before, 
and  that  he  could  not  tell  whether  it  was  in  Obermann's  voice  or  not, 
as  he  did  not  meet  him  until  some  months  afterward.  Smith  did  not 
hear  the  voice  and  consequently  could  not  say  who  the  party  was. 
Tanner  testified,  however,  that  he  asked  through  the  telephone  if  O'Brien 
had  authority  to  buy  goods  for  the  Obermann  Brewing  Company  for 
their  saloon  at  No.  194  Randolph  street,  and  an  affirmative  answer  was 
given.  O'Brien's  authority  to  purchase  the  goods  on  appellant's  credit 
was  the  very  point  in  issue.  Now,  the  admission  of  the  evidence  went 
to  the  merits  of  the  case,  and  was  clearly  error,  and  its  evil  effect  was 
not  neutralized  by  anything  found  in  the  record.  The  parties  in  charge 
of  appellant's  office,  and  having  authority  to  speak  for  it  in  such  mat- 
ters, testified  that  they  received  no  such  communication  by  telephone, 
and  denied  O'Brien's  authority  to  make  the  purchase  for  appellant  or 
on  its  credit.  For  aught  that  appears  the  inquiry  of  Tanner  may  have 
been  answered  by  a  teamster  or  laborer  who  then  happened  to  be  in 
appellant's  office,  but  having  no  right  whatever  to  answer  questions  of 
that  kind-''^^* 


(C)     AUTHENTICATION  BY  OFFICIAL  CUSTODY. 

ADAMTHWAITE  v.  SYNGE  (1816). 
4   Camp.   S72,   i  Stark.   183. 
Debt  on  a  judgment  recovered  in  the  Court  of  Exchequer  in  Ireland. 
The  witness  called  to  prove  an  examined  copy  of  the  judgment,  stated, 
that  at  the  request  of  an  attorney  in  Dublin,  he  went  to  the  build- 
ing  where  the  four  courts  are  held,  and  there  compared  the  copy 
produced  with  a  parchment  roll  produced  by  the  attorney. 

Lord  Ellenborough  deemed  this  evidence  insufficient,  without  either 
showing  that  the  original  came  from  the  proper  place  of  deposit  or  out 

10 — Compare  the  authorities  cited  in  \V.,  §  2155. 


212  QUANTITATIVE   RULES.  No.  225- 

of  the  hands  of  the  ofificer  in  whose  custody  the  records  of  the  Exchequei 
were  kept. 

Courthope,  for  the  plaintiff,  suggested,  that  from  the  contents  of  the 
copy,  it  would  appear,  that  the  original  was  a  record  of  the  Exchequer. 

Ellenborough,  L.  C.  J. :  "It  must  in  the  first  place  be  proved  by  the 
witness  that  the  original  came  out  of  the  proper  custody;  this  cannot 
be  shown  by  any  light  reflected  from  the  record  itself,  which  may  have 
been  improperly  placed  where  it  was  found." 

It  then  appeared,  that  the  records  of  the  different  courts  in  Dublin 
were  all  kept  in  one  room,  but  in  different  presses. 

EllenborougHj  L.  C.  J.:  "Since  the  records  are  kept  in  different 
presses,  the  same  difficulty  still  presents  itself;  it  is  very  distressing  to 
strain  the  rules  of  law,  when  evidence  might  so  easily  have  been  pro- 
cured. If  the  witness  had  stated,  that  the  record  came  out  of  the  hands 
of  the  proper  officer,  it  would  have  been  sufficient.  The  evidence  must  be 
launched  by  proving  that  the  doctiment  came  either  from  the  proper  per- 
,son  or  proper  place ;  till  then  I  cannot  look  upon  it  as  a  record.  To 
.admit  this  evidence  would  afford  a  precedent  for  laxity  of  proof  in 
(Other  cases."     Plaintiff  nonsuited. ^^ 


(D)     AUTHENTICATION  BY  OFFICIAL  SEAL. 

J.  C.  Jeaffreson,  a  Book  about  Lawyers,  i,  21  (1867) ;  "The  Great 
Seal":  "In  days  when  writing  was  an  art  almost  entirely  confined  to 
religious  persons,  sealing  was  a  far  more  important  and 
"""  efficacious  means  of  testifying  the  genuineness  of  docu- 
ments than  it  is  at  present.  ...  In  the  feudal  ages  any 
needy  clerk  who  had  turned  his  attention  to  caligraphy, 
could  have  perpetrated  forgeries  in  perfect  confidence  that 
they  would  endure  the  scrutiny  of  the  most  accurate  and  skilful  of 
living  readers.  But  the  necessity  for  sealing  placed  almost  insuperable 
obstacles  in  the  way  of  those  who  were  best  qualified  and  most  desirous 
to  triumph  over  right  by  fictitious  deeds.  It  was  no  easy  matter  to  pro- 
cure seals  of  any  kind;  it  was  very  difficult  to  obtain  for  dishonest  ends 
the  temporary  possession  of  well-known  seals.  .  .  .  Great  barons,  eccle- 
siastical dignitaries,  secular  and  religious  corporations,  had  distinctive 
seals  at  an  early  date ;  but  they  were  confided  to  the  care  of  trusty  keep- 
ers, and  were  guarded  with  jealousy.  When  an  official  seal  was  used, 
its  keeper  brought  it  with  reverential  care  from  its  customary  place  of 
concealment,  and  it  was  not  applied  to  any  document  without  satisfac- 
tory cause  shown  why  its  sanction  was  required.  An  obscure  tamperer 
v/ith  parchments  could  not  hope  to  lay  his  hand  on  one  of  these  im- 
portant seals.  If  he  procured  an  impression  of  a  respected  seal,  he 
could  not  obtain  a  fac-simile  of  the  original.     Seal-engraving  was  an 

II — Compare  the  authorities  cited  in  W.,  §§   2158,   2x59. 


No.  226.  AUTHENTICATION  OF  DOCUMENTS.  213 

art  in  which  there  were  but  few  adepts;  and  the  artists  were  for  the 
most  part  men  to  whom  no  rogue  would  dare  propose  the  hazardous  task 
of  counterfeiting  an  official  device.  .  .  .  The  forger  of  deeds  in  older 
time  had  not  overcome  all  difficulties,  when  he  had  surreptitiously  ob- 
tained a  seal.  The  mere  act  of  sealing  was  by  no  means  the  simple 
matter  that  it  is  now-a-days.  To  place  the  seal  on  fit  labels  rightly 
placed,  and  in  all  respects  to  make  the  fictitious  deed  an  accurate  imita- 
tion of  the  intended  deeds  to  which  the  particular  seal  of  a  particular 
great  man  was  applied,  were  no  trifling  feats  of  dexterity  ere  scriveners 
had  congregated  into  fraternities,  and  law-stationers  had  been  called 
into  existence.  To  get  a  supply  of  suitable  wax  was  an  undertaking  by 
no  means  easy  in  accomplishment.  Sealing-wax  was  not  to  be  bought 
by  the  pound  or  stick  in  every  street  of  feudal  London.  Cire  d'Espagne 
— sealing-wax  akin  to  the  bright,  vermilion  compound  now  in  use — was 
not  invented  till  the  middle  of  the  sixteenth  century.  William  Howe 
assures  his  readers  that  'the  earliest  letter  known  to  have  been  sealed 
with  it  was  written  from  London  August  3,  1554,  to  Heingrave  Philip 
Francis  von  Daun,  by  his  agent  in  England,  Gerrand  Herman,'  and  long 
after  that  date  the  manufacture  of  sealing-wax  was  a  secret  known  to 
comparatively  few  persons.  In  feudal  England  there  were  divers  ad- 
hesive compounds  used  for  sealing.  Every  keeper  of  an  official  seal  had 
his  own  recipe  for  wax.  Sometimes  the  wax  was  white ;  sometimes  it 
was  yellow;  occasionally  it  was  tinged  with  vegetable  dyes;  most  fre- 
quently it  was  a  mess  bearing  much  resemblance  to  the  dirt-pies  of  little 
children.  But  its  combination  was  a  mystery  to  the  vulgar;  and  no  man 
could  safely  counterfeit  a  sealing-impression  who  had  not  at  command 
a  stock  of  a  particular  sealing-earth  or  paste,  or  wax.  Eyes  powerless 
to  detect  the  falsity  of  a  forger's  handwriting  could  see  at  a  glance 
whether  his  wax  was  of  the  right  colour.  Moreover,  this  practice  of 
attesting  private  deeds  by  public  or  well-known  seals  gave  to  transac- 
tions a  publicity  which  was  the  most  valuable  sort  of  attestation.  A 
simple  knight  could  not  obtain  the  impression  of  his  feudal  chieftain's 
seal  without  a  formal  request,  and  a  full  statement  of  the  business  in 
hand.  The  wealthy  burgher,  who  obtained  permission  to  affix  a  munici- 
pal seal  to  a  private  parchment,  proclaimed  the  transaction  which  oc- 
casioned the  request.  The  thriving  freeholder  who  was  allowed  the 
use  of  his  lord's  graven  device,  had  first  sought  for  the  privilege  openly. 
'Quia  sigillum  meum  plurimis  est  incognitum'  were  the  words  introduced 
into  the  clause  of  attestation ;  and  the  words  show  that  publicity  was  his 
object.  And  to  attain  that  object  the  seal  was  pressed  in  open  court, 
in  the  presence  of  many  witnesses."^" 

12 — "When    a    document   bearing   a    pur-  uinely   his    seal's    impression,    (3)    that    this 

porting    official    seal — a    notary's    certificate  seal-impression     was    affixed    by    him;    and, 

of    protest,     for      example — is      offered     in  furthermore,    (4)    that    it    is    allowable    to 

court,   the  acceptance  of  it  for   the   offered  receive    his    hearsay    official    statement     as    . 

purpose    involves    the    assumption    of    four  testimony  to  the   fact  stated  by  him.      The 

things,    namely,    (i)    that    there    is    an    of-  first    three    of    these    elements    go    to    the 

ficial   of   that   name,    (2)    that   this   is   gen-  matter    of    the    genuineness    of    the    docu- 


214  QUANTITATIVE   RULES.  No.  227, 

Chief  Baron  Gilbert,  Evidence  ip  {ante  1726)  :  "The  distinction  is 
to  be  made  between  seals  of  public  and  seals  of  private  credit ;  for  seals 
of  public  credit  are  full  evidence  in  themselves,  without  any 
*  oath  made;  but  seals  of  private  credit  are  no  evidence  but  by 
an  oath  concurring  to  their  credibility.  Seals  of  public  credit  are  the 
seals  of  the  King,  and  of  the  public  courts  of  justice,  time  out  of 
mind." 


GRISWOLD  v.  PITCAIRN  (1816). 
2   Conn.   S5,   po. 
Assumpsit  on  a  charter  party;  plea  in  bar,  a  judgment  of  the  same 
cause  in  the  Supreme  Court  of  Denmark,  at  Copenhagen,  affirming  a 
judgment  of  the   Sea  Court.     A  purporting  copy  of  this  record 
was  offered.     The  record  was  authenticated  by  the  great  seal  of 
Denmark,     There  was  no  certificate  that  the  decree,  &c,  offered  in  evi- 
dence,  was   a  copy   of  record,  but  below  the   seal  was   the   signature 
Colbiornsen,  without  any  addition  of  his  official  character.    The  trans- 
lator of  the   record,   deposed,   that   he  knew  the  seal   attached  to   the 
original  to  be  the  royal  seal  of  the  kingdom  of  Denmark.  J.  M.  Forbes, 
Esq.  agent  of  the  United  States  at  Copenhagen,  certified,  that  the  sig- 
nature at  the  foot  of  the  record  was  that  of  the  counsellor  of  confer- 
ences, Colbiornsen,  chief  judge  of  the  highest  court.     To  the  admission 
of  this  record  the  plaintiffs  objected. 

Gould,  J.:  "  ,  ,  ,  It  is  first  objected  that  the  record  in  ques- 
tion is  not  duly  authenticated, — i.  e.  not  accompanied  with 
sufficient  evidence  of  its  being  genuine.  But,  in  the  proof 
of  foreign  documents,  there  must  from  the  nature  and 
necessity  of  the  case  be  some  ultimate  limit,  beyond  which 
no  solemnity  of  authentication  can  be  required.  And  the  public  national 
seal  of  a  Kingdom  or  sovereign  State  is,  by  the  common  consent  and 
usage  of  civilized  communities,  the  highest  evidence  and  the  most  sol- 
emn sanction  of  authenticity,  in  relation  to  proceedings  either  diplo- 
matic or  judicial,  that  is  known  in  the  intercourse  of  nations.  The 
seals  of  foreign  municipal  courts,  on  the  contrary,  must  be  proved  by 

ment;    that   is   to   say,    the    document   pur-  any    presumption    of    genuineness,     when- 

ports  to  be  that   of  J.   S.,  a  notary,   assert-  ever   made,    covers   both   elements;    there    is 

ing   a    certain    fact,    and    the    net    result    of  no  case   presuming  the  seal's  impression   to 

the    first   three    elements    is    that    we   accept  have    been    of   his    seal    but    not    affixed    by 

as  a    fact   that   J.    S.,   a   notary,    did   make  him,  nor  vice  versa.     Hence,  in  effect,  the 

this    written    assertion.        If    there    were    a  situation,     for    seal    or    signature    alike,     is 

signature   only,    with   no  seal,   and   the   doc-  reducible    to    the    following    elements    and 

ument    was    similarly    accepted,    the    second  is  so  in   practice  treated:    (i)    that  there   is 

and  third  elements  would  merge   (i.  e.,  the  an   oMcia!  of  that  name;   (2)    (3)   that  this 

purporting  J.    S.'s  signature  is  accepted  as  document   was   genuinely  exectited  by   him. 

written    by    him);    it    is    only    in    the    case  The  remaining  element    (4),  that  this   hear- 

of    a    seal    that    they    are    distinct     (for    it  say    statement    of    his    is    admissible,    is    ob- 

might     be     his     seal's     impression     and     yet  viously    concerned    with    the    Hearsay    rule 

another    person    might     have     affixed      it).  only,    and    may    therefore    be    dismissed    as 

Thus   it    is    that   the   second    and    third    ele-  having    no    present    relation    with    the    prin- 

ments    are    always    judicially    united,    i.    e.,  ciple   of  Authentication."      (W.   §   2161). 


No.  230.  AUTHENTICATION  OF  DOCUMENTS.  215 

extrinsic  evidence.  ...  In  the  present  case,  the  proof  of  the  genuine- 
ness of  the  record,  given  in  evidence,  is,  in  point  of  solemnity,  the  highest 
possible,  the  national  seal  of  the  kingdom  of  Denmark.  And,  as  if  the  pro- 
duction of  the  seal  were  not,  of  itself  sufificient ;  its  genuineness  has  been 
proved  by  evidence  aliunde,  to  which  there  was  no  objection.  .  .  .  But 
there  is  no  evidence,  it  is  said,  that  the  seal  was  affixed  by  a  proper 
officer.  Assuming  the  seal  to  be  genuine,  that  fact  must  of  course  be 
presumed,  unless  the  contrary  is  shown.  For  any  higher  evidence  of 
the  fact,  appearing  upon  the  face  of  the  record,  than  the  seal  itself 
imports  is  impossible,  and  to  require  extrinsic  evidence  of  it  would  be 
to  subvert  the  rule  itself  that  a  national  seal  is  the  highest  proof  of 
authenticity." 


COMMONWEALTH  v.  PHILLIPS  (1831). 
//  Pick.  28,  50. 

Information  praying  for  additional  punishment  for  one  convicted  for 
the  third  time  of  larceny.  The  prior  convictions  were  to  be  proved.  It 
was  objected  that  the  exemplification  of  the  record  of  the  con- 
*■"  viction,  before  the  Supreme  Judicial  Court  in  Middlesex,  certified 
by  the  clerk,  under  the  seal  of  the  court,  was  not  properly  authenticated 
without  the  certificate  of  the  chief  justice,  that  the  person  certifying 
was  the  clerk  duly  authorized,  and  that  it  was  not  competent  evidence 
of  such  conviction  to  go  to  the  jury.  On  this  point  the  prisoner's  coun- 
sel remarked,  that  the  clerk  is  appointed  by  the  Supreme  Court;  that 
his  certificate  used  before  another  tribunal,  in  a  different  place,  has  no 
validity  propria  vigor e,  because  the  judges  of  other  courts  have  no 
means  of  knowing  whether  he  is  the  clerk  lawfully  appointed,  or  a 
usurper  of  the  office;  and  that  the  seal  of  the  court,  without  a  clerk's 
signature,  is  insufficient,  for  a  stranger  might  get  possession  of  the  seal. 

Shaw,  C.  J. :  "Without  expressing  any  opinion  as  to  the  requisites 
for  giving  authenticity  to  records  of  other  governments  and  states 
so  as  to  entitle  them  to  be  received  as  evidence  in  this  common- 
wealth, the  Court  are  of  the  opinion,  that  a  copy  of  the  proceedings 
of  any  court  of  record  in  this  Commonwealth,  certified  to  be  a  true 
copy  of  the  record  of  such  court,  by  the  clerk  of  such  court,  under 
the  seal  thereof,  is  competent  evidence  of  the  existence  of  such 
record  in  every  other  judicial  tribunal  in  the  Commonwealth."^* 


WALDRON   V.  TURPIN    (1840). 

15   La.   552,   555. 

MoRPHY,    J.:      "This      action      is     brought     on     two     promissory 

notes,      dated      at      Grand      Gulf,      in      the      State      of      Mississippi, 

drawn     to    the     order    of    plaintiff,     by    the     firm     of    White, 

^^^      Turpin    &    Nephew,    of    which    defendant    was    a    member,    and 

made  payable  at  the  Grand  Gulf  Railroad  and  Banking  Company,  in 

13 — Compare  the  authorities  cited  in  W.,  §  2164. 


216 


QUANTITATIVE   RULES. 


No.  230. 


that  State.  Defendant  pleaded  the  general  issue  and  novation,  as  to 
one  of  the  two  notes.  Judgment  being  rendered  in  favor  of  tne 
plaintifts,  this  appeal  was  taken.  To  prove  the  demand  at  the  place 
mentioned  in  the  body  of  the  notes  sued  on,  two  documents  were 
offered  in  evidence,  purporting  to  be  notarial  protests  of  the  notes. 
Their  introduction  was  opposed,  on  the  ground  that  no  proof  had 
been  adduced  of  the  signature  and  official  capacity  of  the  person  who 
made  them.  This  objection  having  been  overruled  by  the  judge,  a 
bill  of  exceptions  to  his  opinion  was  taken,  to  which  our  attention 
has  been  particularly  requested.  We  understand  the  general  rule  on 
this  subject  to  be,  that  the  signature  and  official  capacity  of  persons 
assuming  the  character  of  public  officers  in  foreign  countries,  must  be 
proved  when  contested  in  a  court  of  justice.  The  different  States  of 
the  Union  must,  we  apprehend,  be  viewed  in  the  light  of  foreign  coun- 
tries, with  regard  to  each  other,  so  far  as  their  municipal  laws, 
and  the  individual  sovereignty  retained  by  each  of  them,  are  con- 
cerned; and  the  Courts  of  one  State  can  have  or  be  presumed  to  have 
no  more  knowledge  of  the  signature  and  capacity  of  the  public  offi- 
cers of  another  State  than  of  any  other  foreign  country.  To  the 
above  rule  there  exists  an  exception  as  regards  notarial  protests  of 
foreign  bills  of  exchange.  It  has  been  introduced  in  aid  of  com- 
merce, founded  wholly  upon  the  custom  of  merchants  and  public 
convenience ;  it  has  been  acknowledged  and  maintained  by  the  Courts 
of  law,  and  such  protests  receive  credit  everywhere  without  any 
auxiliary  evidence.  We  are  now  asked  to  extend  this  exception  to 
the  protests  of  two  notes,  executed  and  payable  in  the  State  of  Mis- 
sissippi, and  to  receive  such  protests  as  evidence  per  se,  of  a  demand 
of  payment  at  the  indicated  place.  No  adjudged  cases  have  been 
shown  to  us,  nor  have  we  been  able  to  find  any  in  which  the 
extension  contended  for  has  been  allowed,  nor  do  we  see  any  good 
reason  why  it  should.  The  importance  and  almost  universal  use  of 
bills  of  exchange  as  the  means  of  remittances  from  one  country  to 
another;  the  great  commercial  facilities  they  have  found  to  offer;  and 
the  delay  and  trouble  of  procuring  evidence  from  distant  places  are 
among  the  grounds  upon  which  this  exception  has  grown  up.  They 
do  not  apply  to  promissory  notes,  or  other  moneyed  obligations,  more 
limited  in  their  circulation  and  general  usefulness  to  foreign  trade."^* 


STOUT   v.    SLATTERY    (1850). 

12  III.   162. 

Treat,    C.    J.:       "Slattery      sued      out      an      attachment      against 
Stout,      from      a      justice      of      the      peace.       There      was      service 
on      a      garnishee,      and      a     publication     of     notice     to     the 
^^^      defendant.     On  the  fifth  of  February,  1849,  a  judgment  was  en- 
tered  against  the  defendant,    for   $94.62,   and,   on  the  twelfth  of  the 

14 — Compare  the  authorities  cited  in  W.,  §  2165. 


No.  232.  AUTHENTICATION   OF  DOCUMENTS.  217 

same  month,  a  judgment  was  entered  against  the  garnishee  in  the 
same  amount.  On  the  sixteenth  of  March,  1849,  the  defendant  ob- 
tained an  order  for  a  certiorari,  and  filed  the  same,  and  an  appeal 
bond,  in  the  Circuit  Court,  He  stated,  in  his  petition  for  the  cer- 
tiorari, that,  by  reason  of  absence  from  the  state,  he  had  no  actual 
knowledge  or  notice  of  the  pendency  of  the  attachment,  or  of  the 
rendition  of  the  judgments  therein,  until  the  time  allowed  for  an  ap- 
peal had  expired,  and  that  he  was  not  in  any  manner  indebted  to  the 
plaintiff.  The  jurat  to  the  petition  was  subscribed,  'Calvin  A.  War- 
ren, notary  public  for  said  county  of  Adams.'  No  writ  of  cer- 
tiorari was  ever  issued.  .  .  .  The  notary  public,  before  whom  the  peti- 
tion was  verified  did  not  affix  his  seal  of  ofiice  to  the  jurat,  and  it  is 
insisted,  that  his  omission  to  do  so,  presents  an  insuperable  objection 
to  the  proceedings ;  in  other  words,  that  a  notary  can  perform  no 
ofiicial  act  without  evidencing  it  by  his  notarial  seal.  This  position 
cannot  be  maintained.  We  are  clearly  of  the  opinion,  that  the  failure 
of  the  notary  to  annex  his  ofiicial  seal  to  the  jurat  does  not  vitiate 
the  proceedings  based  on  the  petition.  Within  the  county  of  Adams 
the  addition  of  the  seal  was  not  necessary  [even  to  evidence  genu- 
ineness]. If  the  petition  was  to  be  used  in  another  county,  the  seal 
of  the  notary,  or  some  other  evidence  of  his  official  character,  would 
be  indispensable.  .  .  .  The  power  to  administer  oaths  is  expressly 
conferred  by  statute  and  is  not  one  of  the  incidents  of  office.  The 
affixing  of  the  notarial  seal  is  not  essential  to  the  validity  of  his 
acts,  except  in  cases  where  it  is  required  by  some  rule  of  the  common 
law  or  some  provision  of  the  statute.  In  all  other  cases  his  official 
acts,  at  least  within  the  State,  are  none  the  less  valid  because  they 
are  not  authenticated  by  his  notarial  seal.  The  only  difference  relates 
to  the  proof  of  his  authority.  If  the  act  is  not  evidenced  by  the 
seal  of  the  notary,  his  signature  and  official  character  must  be  estab- 
lished by  some  other  legitimate  evidence.  ...  It  is  only  when  it 
becomes  necessary  to  prove  the  making  of  the  oath  that  the  seal  of 
the  officer  or  some  competent  evidence  of  his  authority  must  be  pro- 
duced." 


DEN  dem.  TOURS  v.  VREELANDT   (1800). 

7   N.   J.   L.  S52,   353. 

Ejectment.  Title  was  claimed  under  a  case  from  the  Reformed 
Bergen  Church  to  Tours.  Kinsey,  C.  J. :  "On  the  trial  of  this  cause,  the 
plaintiff  offered  in  evidence  a  lease  from  the  Reformed  Bergen 
Church,  under  what  purported  to  be  the  seal  of  the  corporation, 
without  adducing  any  proof  of  the  authenticity  of  the  seal.  The 
sufficiency  of  this  evidence  being  objected  to,  it  was  overruled  by 
the  presiding  judge,  and,  on  this  failure  to  make  out  his  case,  the 
plaintiff  suffered   a  nonsuit. 


218 


QUANTITATIVE   RULES. 


No.  232. 


"The  question,  therefore,  now  before  the  court  is,  whether  this 
evidence  was  properly  overruled?  A  case  has  been  cited  from 
Viner  v/hich  was  originally  reported  by  Skinner,  and  which,  when 
examined  in  this  last  book,  does  not  appear  to  warrant  the  con- 
struction that  has  been  put  upon  it.  So  far  as  respects  the  pres- 
ent question,  it  is  thus  given  by  Skinner.  'In  ejectione  firmae 
between  Lord  Brounker  and  Sir  Robert  Atkyns  for  the  mastership 
of  the  hospital  of  St.  Catharines,  which  is  a  corporation  con- 
sisting of  the  master,  brethren,  and  sisters :  and  in  this  case  it 
was  said,  that  where  there  is  a  common  seal  put  to  a  deed,  that 
is  title  enough  of  itself,  without  any  witness  to  prove  it,  or  that 
the  major  part  of  the  college  be  agreed;  and  if  it  be  said,  that  it 
was  put  to  by  the  hand  of  a  stranger,  tha-t  shall  be  proved  on  the 
side  that  says  so.'  This  report  is  certainly  not  so  free  from  ambiguity 
as  might  be  wished,  but  I  think  the  meaning  may  be  collected  from  a 
careful  examination  of  the  case,  and  it  appears  to  me  to  go  no 
further  than  to  declare,  that  when  a  corporation  seal  is  affixed  to 
a  deed,  it  is  full  evidence  against  the  corporation  of  a  title  under 
them,  or  that  it  was  their  deed,  and  conveyed  their  title.  The 
words  of  the  report  are,  'it  is  evidence  of  itself,  without  witness 
to  prove  it;'  that  is,  to  prove  the  deed  to  be  really  executed 
by  them,  that  a  major  part  of  the  corporation  assented  to  the 
act;  the  seal  proves  it  as  evidence  of  the  corporate  act.  The 
subsequent  language  is  confirmatory  to  this  construction.  'If  it 
is  said,  that  it  was  put  to  by  the  hand  of  a  stranger,  this  must  be 
proved  by  the  objector.'  So  that  all  that  is  established  by  this 
case  is,  that  when  a  corporation  seal  is  put  to  an  instrument,  its 
execution  as  a  deed  of  the  corporation  is  sufficiently  proved  to 
be  given  in  evidence  in  an  action  of  ejectment.  I  have  been  thus 
full  in  my  examination  of  this  case,  because  it  has  furnished, 
when  stated  by  Viner  in  his  inaccurate  manner,  the  principal  ground 
on  which  the  counsel  for  the  plaintiff  has  placed  his  case. 

"The  question  now  before  us  is  wholly  different.  It  does  not 
turn  upon  the  effect  or  legal  operation  of  a  deed  legally  proved 
and  admitted  in  evidence.  It  is,  whether  a  deed,  having  a  seal 
which  is  called  the  seal  of  the  corporation,  ought  to  have  been 
admitted  in  evidence,  without  proving  that  it  actually  was  what  it 
purported  to  be?  The  point  determined  at  the  trial  was,  that  such 
a  seal  did  not  prove  its  own  authenticity,  but  that  evidence  must 
be  given  to  shew  that  it  really  was  the  seal  of  the  corporation.  It 
has  been  usual  to  allow  deeds  and  other  instruments  relating  to  real 
estate  to  go  to  the  jury  when  authenticated  under  the  seals  of  the 
cities  of  London,  Edinburgh,  or  Dublin;  .  .  .  this  may  be  owing  to 
the  recognition  of  these  corporations  by  the  legislature,  or  to  the  diffi- 
culty of  making  out  the  proof  of  the  fact  with  the  necessary  precision, 
or  perhaps  to  the  almost  utter  impossibility  of  imposing  a  false  or 
counterfeit    for    the    genuine    seal.    .    .    .    [But    since    the    reason    for 


No.  233.  AUTHENTICATION   OF  DOCUMENTS.  219 

recognizing  public  seals,  as  given  by  Gilbert,  is  their  immemorial  use 
and  general  familiarity]  the  seals  of  private  Courts  or  of  private  per- 
sons are  not  evidence  of  themselves;  there  must  be  proof  of  their  cred- 
ibility. It  cannot  be  presumed  that  they  are  universally  known,  and 
consequently  they  must  be  attested  by  the  oath  of  some  one  acquainted 
with  them.  Under  which  description  or  class  of  cases  does  the  seal 
of  the  Bergen  corporation  fall?  Can  it  be  called  a  public  court  or 
corporation?  Has  it  existed  from  time  immemorial?  Are  its  pro- 
ceedings and  acts  sanctioned  by  the  same  length  of  time,  and  do  they 
stand  on  the  same  foundation  as  the  common  law?  And  are  they 
known,  and  can  they  be  legally  presumed  to  be  known  by  every  mem- 
ber of  the  community?  It  does  not  fall  within  this  description,  and 
its  seal  is  not  therefore  entitled  to  universal  credit." 


^^MoDE    OF    Authenticating    when    Genuineness    Is    Not    Pre- 
sumed;   Certificates    of    Attestation;    Statutes    Presuming    Gen- 
uineness. "Suppose,  now,  that  the  seal  or  signature  is  one  of  a 
"  kind  which  does  not  sufificiently  evidence  its  own  genuineness, — 

a  tax-collector  in  another  State,  for  example.  Its  genuineness  therefore 
remains  to  be  proved  by  testimony.  The  inconvenience  of  producing 
a  witness  who  of  his  knowledge  can  testify  to  the  genuineness  of 
the  seal  or  signature  would  be  intolerable,  and  a  resort  to  hearsay 
testimony  in  the  shape  of  official  statements  has  long  been  accepted 
as  proper.  But  who  is  the  appropriate  officer  to  make  such  state- 
ments? Naturally,  at  common  law,  that  chief  officer  at  the  source 
of  executive  power,  who  knows  what  persons  have  been  appointed 
and  what  are  their  seals  or  signatures.  He  must  also  know  their 
duties,  and  be  authorized  to  certify  to  these,  because  the  document, 
being  usually  offered  as  a  hearsay  statement,  must  appear  to  have 
been  made  under  an  official  duty.  Finally,  the  certifying  officer  must 
himself  have  such  a  seal  as  is  presumed  genuine,  because  otherwise 
the  process  of  certifying  would  only  have  to  be  repeated  anew.  Such 
a  seal,  at  common  law,  would  practically  be  the  seal  of  State  only, 
for  foreign  officers  at  least,  though  for  domestic  officers  it  might  be 
one  of  a  lower  grade.  It  will  thus  be  seen  that  at  common  law, 
whenever  a  seal  not  itself  presumed  genuine  is  to  be  authenticated 
otherwise  than  by  testimony  on  the  stand,  two  distinct  rules  are  always 
involved  in  practice,  namely,  the  admissibility  of  the  hearsay  certify- 
ing officer's  statement,  and  the  genuineness  of  his  purporting  certifi- 
cate. In  other  words,  two  questions  must  be  answered:  (i)  What 
higher  officer  is  authorized  to  certify  to  the  authority  of  the  lower 
office,  the  official  incumbency  of  the  person  exercising  it,  and  the 
genuineness  of  the  document  purporting  to  be  executed  by  him ;  and 
(2)  Is  this  higher  officei-'s  purporting  certificate  to  he  presumed 
genuine?      The  one  requirement  might  be  satisfied  without  the  other, 

IS — Quoted   from  W..   §  2162. 


220 


QUANTITATIVE   RULES. 


No.  233. 


for  example,  {i)  a  judge  of  court  might  be  a  proper  officer  to  certify 
to  a  clerk's  authority  to  copy  the  records  and  to  the  genuineness  of  a 
copy  purporting  to  be  by  the  clerk;  but  (2)  the  judge's  own  pur- 
porting certificate  might  not  be  sufficiently  authenticated  by  his  seal 
if  from  a  foreign  State,  though  it  might  be  from  the  domestic  juris- 
diction; and  resort  might  further  be  required  to  the  seal  of  State, 
which  would  be  presumed  genuine.  Now  it  is  the  Authentication 
principle  which  answers  the  second  question,  and  the  Hearsay  excep- 
tion which  answers  the  first  question. 

"The  matter  is  further  complicated  by  the  circumstance  that  most 
statutes  dealing  with  the  subject  provide  in  the  same  section  for  both 
sets  of  rules,  i.  e.  they  not  only  declare  the  higher  officers  authorized 
to  certify  to  other  official  documents,  but  also  declare  how  far  up 
the  process  must  be  continued  before  reaching  a  seal  which  will  be 
presumed  genuine.  For  example,  they  may  provide  that  a  city  tax- 
collector's  certified  copy  may  be  authenticated  by  the  mayor's  cer- 
tificate under  city  seal,  and  this  in  turn  by  the  seal  of  the  governor, 
or  chancellor,  or  secretary  of  State  under  seal  of  State.  Every  such 
statute  includes  a  declaration  of  the  Authentication  rule  as  well  as 
of  the   rule  of  the   Hearsay  exception. "^^ 


16 — The  following  English  statute  is  an 
example  of  the  few  that  keep  the  two 
principles  distinct:  1845,  St.  8  &  9  Vict. 
c.  113,  §  I.  "Whereas  it  is  provided  by 
many  statutes  .  .  .  [that  various  official 
documents,  corporation  proceedings,  certi- 
fied copies,  etc.,  shall  be  admissible  when 
duly  authenticated],  and  whereas  the  bene- 
ficial effect  of  these  provisions  has  been 
found  by  experience  to  be  greatly  dimin- 
ished by  the  difficulty  of  proving  that  the 
said  documents  are  genuine,  and  it  is  ex- 
pedient to  facilitate  the  admission  in  evi- 
dence of  such  and  the  like  documents,"  it 
is  enacted  that  whenever  any  certificate, 
official  document,  etc.,  is  receivable  in  evi- 


dence, it  shall  be  admitted  if  it  "purport 
to  be  sealed  or  impressed  with  a  stamp, 
or  sealed  and  signed,  or  signed  alone,  as 
required,  or  impressed  with  a  stamp  and 
signed,  as  directed  by  the  respective  Acts 
.  .  .  ,  without  any  proof  of  the  seal  or 
stamp,  where  a  seal  or  stamp  is  necessary, 
or  of  the  sig^nature  of  the  official  charac- 
ter of  the  person  appearing  to  have  signed 
the  same,  and  without  any  further  proof 
thereof  in  every  case  in  which  the  original 
record  could  have  been  received  in  evi- 
dence." 

Compare  the  cases  and  statutes  quoted 
post,  Nos.  332-341,  where  the  Hearsay  ex- 
ception for  Official  CertiUcates  is  dealt  with. 


No.  234.  BOOK   I,    PART  II.  221 

TITLE  II. 

PREFERENTIAL   RULES. 

^Nature  of  the  Rules.  "The  nature  of  the     Preferential  rules  is 
that  they  prefer  one  kind  of  evidence  to  another.     This  they  may  do 
in  one  of  two  ways :  ( i )  They  may  require  one  kind  of  evidence 
^^'^      to  be  brought  in  before  any  other  can  be  resorted  to,  and  may  re- 
fuse provisionally  to  listen  to  the  latter  until  the  former  is  procured  or 
is  shown  to  be  inaccessible;  or   (2)   they  may  prefer  one  kind  of  evi- 
dence absolutely,  i.  c.  they  may  require  its  production,  and,  so  long  as 
it  is  available,  consider  no  other  kind  of  evidence,  even  after  the  pre- 
ferred kind  has  been  supplied.    With  reference  to  the  kinds  of  evidence 
thus  preferred,  these  rules  are  of  the  following  scope:   (A)  There  is  a 
rule  of  preference  for  the  inspection  of  the  thing  itself,  in  place  of  any 
evidence,    either    circumstantial   or   testimonial,    about   the    thing;    this 
is  the  rule  of  Primariness,  as  sometimes  termed  (treated  post,  §§  1177- 
1282),    and    concerns    itself    solely    with    documents.     The    preference 
here  is  solely  of  the  conditional  sort  above-named,  and  not  of  the  ab- 
solute  sort.       The   questions   that   here   arise   are,   in   general,   to   what 
objects    this    rule    of    preference    applies,    under    what    conditions — the 
object   ceasing  to  be  available   for  production — the   preference   ceases, 
and   to  what   exceptions   the  rule  is   subject.      (B)    There  is,   next,   a 
preference    as   between    various    kinds   of    testimonial   evidence.       One 
kind  of  witness  may,  for  various  reasons,  be  required  to  be  called  in 
preference  to  another.     Here  the  two  kinds  of  preference,   conditional 
and  absolute,  are  both  found,      (i)   The  chief  example  of  the  former 
sort   is   the   rule   requiring  an  attesting  witness   to   be   called.      Other 
examples   of  this  kind  of   rule   are   sometimes   found   in   requirements 
that    the    eye-witnesses    to   a   crime    must    all    be    called,    or    that    the 
owner  of  stolen  goods  must  be  called  to  prove  their  loss,  or  that  the 
alleged  writer  of  a  document  must  be  called  to  identify  it.      (2)    Of 
the   absolute   preference  of  one   witness   above   another,   tlic   chief   ex- 
ample is  the  rule  preferring  a  magistrate's  official  report  of  testimony 
delivered  before  him.      The  preference  here,  when  held  to  be  absolute. 
is  so  in  the  sense  that  this  report  is  not  allowed  to  be  shown  erro- 
neous, i.  e.  the  magistrate's  report  is  preferred  so  as  to  stand  against 
that  of  any  other  person  whatever.     Another  example  of  such  a  rule 
is  the  preference  given  to  the  enrolment  of  a  statute  as  certified  to  by 
the  presiding  oflficers  of  the  Legislature,  the  Governor,  and  the  Secre- 
tary  of   State;   where   this   doctrine   obtains,    these   persons'   testimony 
is  made  to  stand  against  that  of  any  other  persons. "- 

1 — Quoted  from  W.,  §1172.  2 — ror     the     "best     evidence"     principle, 

see  ante,   No.    163. 


222  PREFERENTIAL  RULES.  No.  235. 

SUB-TITLE  I. 

PRODUCTION  OF  DOCUMENTARY  ORIGINALS. 

'  A:     The  Rule  Itself. 

DR.  LEYFIELD'S  CASE  (i6li). 
10  Co.  Rep.  p2a. 
Per  Curiam  :  "It  was  resolved  that  the  lessee  for  years 
in  the  case  at  bar  ought  to  shew  the  letters  patent  made  to  the 
lessee  for  life.  For  it  is  a  maxim  in  the  law  that  ...  al- 
**  though  he  who  is  privy  claims  but  parcel  of  the  original 
estate,  yet  he  ought  to  shew  the  original  deed  to  the  Court.  And  the 
reason  that  deeds  being  so  pleaded  shall  be  shewed  to  the  Court  is 
that  to  every  deed  two  things  are  requisite  and  necessary;  the  one, 
that  it  be  sufficient  in  law,  and  that  is  called  the  legal  part,  because 
the  judgment  of  that  belongs  to  the  judges  of  the  law;  the  other  con- 
cerns matter  of  fact,  sc.  if  it  be  sealed  and  delivered  as  a  deed,  and 
the  trial  thereof  belongs  to  the  country.  And  therefore  every  deed 
ought  to  approve  itself,  and  to  be  proved  by  others, — approve  itself 
upon  its  shewing  forth  to  the  Court  in  two  manners:  i.  As  to 
the  composition  of  the  words  to  be  sufficient  in  law,  and  the  Court 
shall  judge  that;  2.  That  it  be  not  razed  or  interlined  in  material 
points  or  places;  ...  3.  That  it  may  appear  to  the  Court  and  to 
the  party  if  it  was  upon  conditional  limitation  or  power  of  a  revoca- 
tion in  the  deed.  .  .  .  And  these  are  the  reasons  of  the  law  that  deeds 
pleaded  in  court  shall  be  shewed  forth  to  the  Court.  And  therefore 
it  appears  that  it  is  dangerous  to  suffer  any  who  by  the  law  in  plead- 
ing ought  to  shew  the  deed  itself  to  the  Court,  upon  the  general  issue 
to  prove  in  evidence  to  a  jury  by  witnesses  that  there  was  such  a 
deed,  which  they  have  heard  and  read ;  or  to  prove  it  by  a  copy ;  for 
the  viciousness,  rasures,  or  interlineations,  or  other  imperfections  in 
these  cases  will  not  appear  to  the  Court,  or  peradventure  the  deed 
may  be  upon  conditional  limitation  or  with  power  of  revocation,  and 
by  this  way  truth  and  justice  and  the  true  reason  of  the  common 
law  would  be  subverted.  .  .  .  Yet  in  great  and  notorious  extremities, 
as  by  casualty  of  fire,  that  all  his  evidences  were  burnt  in  his  house, 
there,  if  that  should  appear  to  the  Judges,  they  may,  in  favor  of  him 
who  has  so  great  a  loss  by  fire,  suffer  him  upon  the  general  issue  to 
prove  the  deed  in  evidence  to  the  jury  by  witnesses,  that  affliction  be 
not   added  to   affliction."'^ 

3 — -Read    v.    Brookman.    3     T.     R.      151  by    Lord    Coke     [in    Leyfield's    Case]     ex- 

(1789);     a    demurrer,    to    a    plea    excusing  tends    to    all    cases    of    extreme    necessity; 

profert    on    the    ground    that    it    was    "lost  those    which   he   mentions  are   only   put   as 

and   destroyed  by  time  and   accident,"  was  instances;    and    wherever    a    similar    neces- 

overruled;  Buller,  J.:    "The  rule  laid  down  sity  exists,   the  same   rule   holds." 


No.  237.  '  DOCUMENTARY   ORIGINALS.  223 

COMMONWEALTH  v.  MORRELL  (1868.) 
pp  Mass.  542. 

Indictment  for  robbery.  At  the  trial,  a  detective  oflficer  testified 
that  he  and  one  Jones,  his  partner,  arrested  the  defendants  at  Chicago, 
took  possession  of  their  baggage,  and  detached  the  tags  from 
***"  their  valises  for  the  purpose  of  preserving  them  as  evidence. 
The  witness  w^as  proceeding  to  state  what  was  written  on  the  tags 
so  detached  by  him,  when  the  defendants'  counsel  objected,  claiming 
that  the  tags  must  be  produced  or  shown  to  be  lost  before  the  writ- 
ing  thereon    could   be   given   by   the  witness. 

Chapman,  C.  J. :  "The  general  rule  is  most  frequently  applied 
to  writings,  where  proof  is  offered  of  their  contents.  The  writing 
itself  must  be  produced.  But  there  are  many  exceptions  as  to  writ- 
ings. An  inscription  on  a  banner  or  flag  carried  about  by  the  leaders 
of  a  riot  may  be  proved  orally.  The  King  v.  Hunt,  3  B.  &  Aid. 
566.  Or  a  direction  contained  on  a  parcel,  Burrell  v.  North,  2  Car. 
&  K.  679.  Or  a  notice  to  an  indorser  of  a  promissory  note.  Eagle 
Bank  v.  Chapin,  3  Pick.  180.  In  the  present  case,  the  tag  referred 
to  was  not  a  document,  but  an  object  to  be  identified.  The  words 
written  upon  it  served  to  identify  it;  and  the  court  are  of  opinion 
that  oral  evidence  was  admissible  for  this  purpose,  and  that  it  was 
not  necessary  to  produce  the  tag.  An  inspection  of  the  tag  with 
the  written  direction  upon  it  might  have  been  more  satisfactory  to 
the  jury  than  an  oral  description  of  it,  and  therefore  might  be  re- 
garded as  the  stronger  evidence;  but  the  strength  of  evidence  and 
the  admissibility  of  evidence  are  different  matters."* 


GATHERCOLE  v.  MIALL   (1846.) 

15  M.  &  IV.  31P,  32p. 

Action  for  libel  published  in  a  newspaper  called  "The  Noncon- 
formist," Jan.  7,  1846.  A  person  of  the  name  of  Brookes  was 
called,  who  stated  that  he  was  the  president  of  the  Chatteris 
^^^  Literary  Institution,  which  consisted  of  eighty  members;  that 
early  in  January  last  a  number  of  "The  Nonconformist"  was  brought 
to  the  institution,  he  did  not  know  by  whom,  and  left  there  gratuitous- 
ly; that,  about  a  fortnight  afterwards,  it  was  taken  (as  he  sup- 
posed) out  of  the  subscriber's  room  without  his  authority,  and  was 
never  returned;  that  he  had  searched  the  room  for  it.  but  had  not 
found  it,  and  never  knew  who  had  it;   and  that  he  believed  it  was 

4 — Compare  the  authorities  cited  in   W.,  §§  ii8t-xi83. 


224  PREFERENTIAL  RULES.  No.  237. 

lost  or  destroyed.  The  learned  Judge,  under  these  circumstances,  held 
that  secondary  evidence  of  the  contents  of  the  paper  was  admis- 
sible. .  .  .  Sir  Thomas  Wilde,  Serjt.,  now  moved  for  a  new  trial,  on 
the  ground  of  the  improper  reception  of  evidence,  and  of  misdirection. 
"First,  there  was  no  sufficient  evidence  of  the  loss  of  the  paper 
brought  to  the  Chatteris  Literary  Institution,  to  make  Brookes"  evi- 
dence of  its  contents  admissible.  This  was  a  room  frequented  only 
by  subscribers  of  the  Institution,  limited  in  number;  and  it  does  not 
appear  how  many  or  how  few  were  in  the  habit  of  visiting  it  about 
that  time.  Some  inquiry  should  have  been  made  amongst  them,  or 
at  least  from  the  proprietor  of  the  rooms.  It  is  not  like  the  case  of 
a  public  coffee-room,  to  which  any  number  of  strangers  may  resort." 
Pollock^  C.  B.  :  "The  evidence  of  a  document  being  lost,  upon 
which  secondary  evidence  may  be  given  of  its  contents,  may  vary 
much,  according  to  the  nature  of  the  paper  itself,  the  custody  it  is  in, 
and  indeed  all  the  surrounding  circumstances  of  the  particular  matter 
before  the  Court  and  jury.  A  paper  of  considerable  importance, 
which  is  not  likely  to  be  permitted  to  perish,  may  call  for  a  much 
more  minute  and  accurate  search  than  that  which  may  be  considered 
as  waste  paper,  which  nobody  would  be  likely  to  take  care  of.  .  .  . 
What  inquiry  will  do?  I  think,  in  cases  of  this  sort,  if,  some  time 
after  its  publication,  a  newspaper,  which,  except  occasionally  for  the 
purpose  of  filing,  is  not  very  much  considered  a  few  days  after  its 
publication,  is  not  found  in  the  place  where  it  ought  to  be,  if  it  be 
anywhere,  no  search  is  necessary  among  members  of  the  club,  or 
persons  who  frequent  the  club-room:  it  may  be  taken  to  be  lost,  if 
it  cannot  be  produced  from  the  spot  where  it  ought  to  be  found." 
Ai.DERSON^  B. :  "The  question  whether  there  has  been  a  loss,  and 
whether  there  has  been  sufficient  search,  must  depend  very  much  on 
the  nature  of  the  instrument  searched  for.  ...  If  we  were  speaking 
of  an  envelope,  in  which  a  letter  had  been  received,  and  a  person 
said,  T  have  searched  for  it  among  my  papers,  I  cannot  find  it,'  surely 
that  would  be  sufficient.  So  with  respect  to  an  old  newspaper  which 
has  been  at  a  public  coffee-room;  if  the  party  who  kept  the  public 
coffee-room  had  searched  for  it  there,  where  it  ought  to  be  if  in 
existence,  and  where  naturally  he  would  find  it,  and  says  he  supposes 
it  has  been  taken  away  by  some  one,  that  seems  to  me  to  be  amply 
sufficient.  If  he  had  said,  T  know  it  was  taken  away  by  A.  B.,'  then 
I  should  have  said  you  ought  to  go  to  A.  B.  and  see  if  A.  B.  has  not 
got  that  which  it  is  proved  he  took  away.  ...  As  it  seems  to  me, 
the  proper  limit  is,  where  a  reasonable  person  would  be  satisfied 
that  they  had  bona  fide  endeavoured  to  produce  the  document  itself; 
and  therefore  I  think  it  was  reasonable  to  receive  parol  evidence  of 
the   contents  of  this   newspaper."^ 

5 — Compare   the  authorities  cited  in  W.,  §§  1194-1195. 


No.  238.  DOCUMENTARY  ORIGINALS.  225 

ATTORNEY-GENERAL    v.    LE    MERCHANT    (1773). 

2  T.  R.  201. 

Information  for  the  illegal  importation  of  tea.  In  the  course  of 
the  trial,  the  Attorney-General  offered  to  read  some  letters  concerning 

this  tea,   which  had  been  sent  bv  the  defendant  to  Channon,  a 

000 

witness  for  the  crown,  which  letters  were  proved  to  have  come 
to  the  defendant's  hands  under  an  order  made  by  the  Lord  Chan- 
cellor for  the  delivery  up  to  him  of  all  papers  and  letters  seized 
under  a  commission  of  bankrupt  against  Channon,  among  which  were 
these  letters.  The  solicitor  of  the  excise  had  contrived  to  take  copies 
of  them  whilst  they  were  in  the  hands  of  the  clerk  of  the  commis- 
sion ;  and  notice  having  been  given  to  the  defendant  to  produce  the 
original  letters,  and  that  being  refused,  the  Attorney-General  offered 
to  read  these  copies.  This  was  objected  to  by  the  counsel  for  the 
defendant,  upon  the  ground  principally,  that  a  defendant  in  a  criminal 
case  was  never  bound  to  produce  evidence  against  himself;  that  he 
was  guilty  of  no  crime  in  not  producing  them ;  and  that  the  Attorney- 
General  had  no  right  to  call  upon  him  to  produce  them,  or  ask  a 
single  question  concerning  them;  consequently  no  copies  could  be  ad- 
mitted in  evidence.  But  Eyre,  Baron,  admitted  the  evidence,  though 
he  said  he  had  some  doubt  about  it,  ,  .  . 

Smythe,  L.  C.  B.:  "First,  it  was  objected,  that  copies  of  letters 
or  papers  in  the  hands  of  the  adversary  ought  not  to  be  read  in 
criminal  cases;  that  was  one  general  objection.  And  the  other,  that 
supposing,  for  argument's  sake,  they  ought  to  be  admitted,  yet  in 
this  particular  instance  the  notice  which  was  given  was  not  suf- 
ficient. As  to  the  first  objection,  that  copies  are  not  admissible  in 
any  criminal  case,  because  that  would  be  to  oblige  a  man  to  produce 
evidence  against  himself;  in  answer  to  it,  I  do  not  recollect  that 
they  have  produced  any  one  case  to  show  any  difference  at  all  as  to 
the  rule  of  evidence  in  criminal,  and  in  civil  cases ;  therefore  the  rule 
of  evidence  in  both  cases  is  the  same,  that  is,  to  have  the  best  evi- 
dence that  is  in  the  power  of  the  party  to  produce,  which  means  that, 
if  the  original  can  possibly  be  had,  it  shall  be  required,  but  if  that 
original  be  destroyed,  or  if  it  be  in  the  hands  of  the  opposite  party 
who  will  not  produce  it,  then  in  case  of  a  deed,  a  counter  one,  or 
sometimes  a  copy  of  the  deed,  or  copy  of  the  paper,  is  evidence 
to  be  admitted.  ...  It  was  likewise  said,  in  support  of  the 
motion,  that  the  reason  why  copies  are  permitted  to  be 
evidence  in  common  cases  is  because  the  party  who  has  them  in 
his  custody,  and  does  not  produce  them,  is  in  some  fault  for  not 
producing  them ;  it  is  considered  as  a  misbehavior  in  him  in  not 
producing  them,  and  therefore  in  criminal  cases  a  man  who  does 
not  produce  them  is  in  no  fault  at  all,  and  for  that  reason  a  copy  is 
not  admitted.     But  I  do  not  take  that  to  be  the  rule;  it  is  not  founded 


226  PREFERENTIAL  RULES.  No.  238. 

upon  any  misbehavior  of  the  party,  or  considering  him  in  fault;  but 
the  rule  is  this:  the  copies  are  admitted  when  the  originals  are  in 
the  adversary's  hands  for  the  same  reason  as  when  the  originals  are 
lost  by  accident;  the  reason  is  because  the  party  has  not  the  originals 
to  produce.  .  .  .  Another  objection  has  been  made  that  this  notice 
is  not  sufficient;  the  answer  is,  I  know  no  difference  between  the 
rule  of  evidence  in  ciyil  and  criminal  cases.  Then,  if  there  be  no 
such  difference,  the  rule  which  has  always  been  followed  and  allowed 
in  civil  cases  is  that  notice  be  given  to  the  attorney  or  agent 
of  the  adverse  party.  Now  in  this  case,  without  going  minutely  into 
the  consideration,  whether  the  notice  was  proved  to  the  defendant 
himself,  and  was  good,  here  is  unquestionable  notice  proved  to  Sayer 
who  is  the  agent  and  solicitor  of  Le  Merchant,  into  whose  hands  it 
appears  that  these  letters  had  actually  been  delivered;  and  then  there 
is  a  notice  likewise  to  Davy,  who  is  the  attorney  for  the  defendant 
in  this  very  cause,  and  no  attempt  was  made  on  the  part  of  the  de- 
fendant to  prove  what  was  become  of  these  letters,  or  that  it  was 
not  in  his  power  to  produce  them."*' 


DWYER  V.  COLLINS  (1852). 
;'   Exch.    6jp. 

Action  by  the  indorsee  against  the  acceptor  of  a  bill  of  exchange ; 
to  which  the  defendant  pleaded,  inter  alia,  that  the  bill  was  given 
for  a  gaming  debt.  On  the  trial,  before  the  Lord  Chief  Baron, 
"  the  defendant  proceeded  to  prove  his  plea;  and  for  that  purpose 

gave  evidence  of  the  gaming,  and  swore  that  the  only  bill  he  ever 
gave  to  the  drawer  of  the  bill  which  was  declared  on,  was  by  way 
of  payment  of  the  debt  then  incurred.  The  defendant's  counsel, 
being  required  to  prove  that  the  identical  bill  declared  upon  was 
that  which  was  given  on  that  occasion,  called  for  the  bill,  which  the 
plaintiff's  counsel  declined  to  produce.  The  plaintiff's  attorney  hav- 
ing admitted  that  the  bill  was  in  his  possession  and  in  court,  the  de- 
fendant's counsel  called  for  its  production;  which  being  refused,  he 
then  offered  to  give  secondary  evidence  of  its  contents.  The  plain- 
tift"'s  counsel  objected  that  there  ought  to  have  been  a  previous  notice 
to  produce;  and  the  Lord  Chief  Baron,  after  consulting  the  judges, 
ruled  in  favor  of  the  defendants. 

Parke,  B.  :  "The  next  question  is  whether,  the  bill  being  ad- 
mitted to  be  in  court,  parol  evidence  was  admissible  on  its  non-pro- 
duction, or  whether  a  previous  notice  to  produce  was  necessary.  On 
principle,  the  answer  must  depend  on  the  reason  why  notice  to  pro- 
duce is  required.  If  it  be  to  give  his  opponent  notice  that  such  a 
document  will  be  used  by  a  party  to  the  cause,  so  that  he  may  be 
enabled  to  prepare  evidence  to  explain  or  confirm  it,  then  no  doubt  a 

6 — Compare  the   authorities  cited  in  W.,  §§  1199-1201. 


Mo.  240.  DOCUMENTARY  ORIGINALS.  227 

notice  at  the  trial,  though  the  document  be  in  court,  is  too  late.  But 
if  it  be  merely  to  enable  the  party  to  have  the  document  in  court,  to 
produce  it  if  he  likes,  and  if  he  does  not,  to  enable  the  opponent  to 
give  parol  evidence, — if  it  be  merely  to  exclude  the  argument  that 
the  opponent  has  not  taken  all  reasonable  means  to  procure  the 
original  (which  he  must  do  before  he  can  be  permitted  to  make  use 
of  Secondary  evidence),  then  the  demand  of  production  at  the  trial  is 
suiificient.  ...  If  this  [the  former]  be  the  true  reason,  the  measure  of 
the  reasonable  length  of  notice  would  not  be  the  time  necessary  to 
procure  the  document — a  comparatively  simple  inquiry — ,  but  the  time 
necessary  to  procure  evidence  to  explain  or  support  it, — a  very  com- 
plicated one,  depending  on  the  nature  of  the  plaintiff's  case  and 
the  document  itself  and  its  bearing  on  the  cause ;  and  in  practice 
such  matters  have  never  been  inquired  into,  but  only  the  time  with 
reference  to  the  custody  of  the  document  and  the  residence  and  con- 
venience of  the  party  to  whom  notice  has  been  given,  and  the  like. 
We  think  the  plaintiff's  alleged  principle  is  not  the  true  one  on 
which  notice  to  produce  is  required,  but  that  it  is  merely  to  give  a 
sufficient  opportunity  to  the  opposite  party  to  produce  it  and  thereby 
secure  if  he  pleases  the  best  evidence  of  the  contents;  and  a  request 
to  produce  immediately  is  quite  sufficient  for  that  purpose,  if  it  be 
in  court.  ...  It  would  be  some  scandal  to  the  administration  of  the 
law    if    the    plaintiff's    objection    had    prevailed."^ 


UNITED    STATES    v.    DOEBLER    (1832). 

Baldw.   51Q,  524,  25  Fed.   Cas.  88^. 

Indictment  for  forging  a  bank-note.  After  evidence  of  the  forg- 
ing of  the  note  in  question,  one  Empich  was  examined,  who  proved 
that  at  the  Lancaster  races,  at  the  time  testified  by  Rallston,  the 
*^  defendant  delivered  him  a  20  dollar  note,  stating  that  it  was  not 
good,  and  requested  the  witness  to  play  it  off  at  a  faro  table,  which  he 
did  not  do,  but  after  some  time  returned  it  to  the  defendant.  Mr.  Gilpin, 
after  stating  that  this  note  was  not  the  subject  of  any  indictment, 
but  that  the  evidence  in  relation  to  it  was  offered  to  prove  the  scienter 
as  to  the  notes  charged  in  the  indictment,  asked  the  witness  to  de- 
scribe the  20  dollar  note,  as  to  the  bank,  &c.,  it  was  on,  which  was 
objected  to,  on  the  ground  that  this  was  matter  collateral  to  the  in- 
dictment, of  which  notice  ought  to  have  been  given  to  the  defendant, 

7 — Alderson,  B.,   in   Lawrence   v.    Clark,  is  sufficient   in   one  case  may  not  he  so  in 

14  M.    &   W.    250,   253    (1845):    "All    these  another;   and   much   therefore  must   be  left 

cases    depend    on    their    particular    circum-  to    the    discretion    of    the    presiding    judge, 

stances;    and   the   question    in   each   case  is  subject    of    course    to    correction     by    the 

whether    the   notice    was    given    in    reason-  Court." 

able    time    to    enable    the    plaintiff    to    be  Compare    the    authorities    cited    in    W., 

prepared   to   produce    the    document   at   the  §§  1202-1204. 
time  of  the  trwl";  Pollock,  C.  B.:     "What 


228  PREFERENTIAL  RULES.  No.  240. 

and  that  it  was  not  evidence  of  the  scienter,  because  the  delivery  of 
the  note  to  Empich  was  subsequent  to  the  delivery  of  the  note  which 
was  the  subject  matter  of  the  indictment,  and  the  question  was 
elaborately    argued. 

Baldwin,  J. :  "...  As  the  intention  ana  knowledge  with  which 
the  act  is  done,  constitute  the  crime,  it  may  be  made  out  by  evidence 
of  other  acts  of  a  similar  kind  with  that  charged  in  the  indictment. 
This  being  the  well  settled  and  well  known  rule  in  such  cases,  the 
prisoner  cannot  be  taken  by  surprise;  when  such  evidence  is  offered, 
he  must  come  prepared  to  meet  not  only  the  evidence  which  applies 
directly  to  the  specific  act  charged,  but  all  other  acts  which,  accord- 
ing to  the  known  rules  of  evidence,  a  prosecutor  may  adduce  to  prove 
the  act  charged.  If  the  note  he  is  charged  with  forging,  passing, 
or  delivering,  is  of  the  same  kind  with  others  which  he  has  disposed 
of  or  retained  in  his  possession,  he  has  notice  in  effect  that,  if  prac- 
ticable to  procure  it,  evidence  will  be  given  of  their  counterfeit  char- 
acter, and  of  his  having  passed  them  as  true.  It  is  notice  in  law,  by 
which  a  party  is  as  much  bound  both  in  civil  and  in  criminal  cases  as 
l)y  notice  in  effect.  Notice  in  fact  is  notice  in  form;  notice  in  law 
is  notice  in  effect ;  and  either  are  sufficient.  .  .  .  Knowing  that  proof 
of  all  these  facts  is  as  competent  to  the  prosecutor  as  the  one  specific- 
ally  charged,    no    injustice    is    done    him."^ 


Chief  Baron  Gilbert,  Evidence,  7  {ante  1726)  :  "Records,  being 
the  precedents  of  the  demonstrations  of  justice,  to  which  every  man 
has  a  common  right  to  have  recourse,  cannot  be  transferred 
place  to  place  to  serve  a  private  purpose ;  and  therefore  they 
have  a  common  repository,  from  whence  they  ought  not  to  be  re- 
moved but  by  the  authority  of  some  other  Court;  and  this  is  in  the 
'treasury  of  Westminster.  And  this  piece  of  law  is  plainly  agreeable 
to  all  manner  of  reason  and  justice;  for  if  one  man  might  demand  a 
record  to  serve  his  own  occasions,  by  the  same  reason  any  other 
person  might  demand  it;  but  both  could  not  possibly  possess  it  at  the 
same  time  in  different  places,  and  therefore  it  must  be  kept  in  one 
certain  place  in  common  for  them  both.  Besides,  these  records,  by 
being  daily  removed,  would  be  in  great  danger  of  being  lost.  And 
consequently;  it  is  on  all  hands  convenient  that  these  monuments  of 
justice  should  be  fixed  in  a  certain  place,  and  that  they  should  not 
be  transferred  from  thence  but  by  public  authority  from  superior 
justice.  The  copies  of  records  must  be  allowed  in  evidence,  for  .  .  . 
the  rule  of  evidence  commands  no  farther  than  to  produce  the  best 
that  the  nature  of  the  thing  is  capable  of;  for  to  tie  men  up  to  the 
original  that  is  fixed  to  a  place,  and  cannot  be  had,  is  to  totally  dis- 
card their  evidence,  .  .  .  for  then  the  rules  of  law  and  right  would  be 
the  authors  of  injury,  which  is  the  highest  absurdity."^ 

S — Compare  the  authorities  cited   in  W.,  g — Ellcnhoroiigh,  L.  C.  J.,  in  Hennell  v. 

§  1205.  Lyon,   I   B.   &  Aid.   182,   184   (1817):   "The 


No.  242.  DOCUMENTARY   ORIGINALS.  229 

DOE   dem.   PATTERSON   v.    WINN    (1831). 
5  Pet.  233,  241. 

Ejectment  to  recover  a  tract  of  land  of  7,300  acres,  lying  in  that 
part  of  the  county  of  Gwinnett,  which  was  formerly  a  portion  of 
Franklin  county.  On  the  trial  at  Milledgeville,  at  November 
^^^  term  1829,  the  plaintiff  offered  in  evidence  the  copy  of  a  grant 
or  patent  from  the  state  of  Georgia  to  Basil  Jones,  for  the  land  in 
question,  duly  certified  from  the  original  record  or  register  of  grants 
in  the  secretary  of  state's  office,  and  attested  under  the  great  seal  of 
the  state.  To  the  admissibility  of  this  evidence,  the  defendants  by 
their  counsel  objected,  on  the  ground  that  the  said  exemplification 
Gould  not  be  received  imtil  the  original  grant  or  patent  was  proved  to 
be  lost  or  destroyed,  or  the  non-production  thereof  otherwise  legally 
explained  or  accounted  for,  according  to  a  rule  of  the  court.  This  ob- 
jection  the   Circuit   Court   sustained,   and   rejected  the   evidence. 

Story,  J. :  "We  think  it  clear  that  by  the  common  law,  as  held 
for  a  long  period,  an  exemplification  of  a  public  grant  under  the 
Great  Seal  is  admissible  in  evidence,  as  being  record  proof  of  as 
high  a  nature  as  the  original.  .  .  .  There  was  in  former  times  a  tech- 
nical distinction  existing  on  this  subject  which  deserves  notice.  As 
evidence,  such  exemplification  of  letters  patent  seem  to  have  been 
generally  deemed  admissible.  But  where,  in  pleading,  a  profert  was 
made  of  letters  patent,  there,  upon  the  principles  of  pleading,  the  origi- 
nal under  the  Great  Seal  was  required  to  be  produced,  for  a  profert 
could  not  be  made  of  any  copy  or  exemplification.  It  was  to  cure  this 
difficulty  that  the  statutes  of  3  Edw.  VI,  c.  4,  and  13  Eliz.  c.  6,  were 
passed,  by  which  patentees  and  all  claiming  under  them  were  enabled 
to  make  title  in  pleading  by  showing  forth  an  exemplification  of  the 
letters  patent  as  if  the  original  were  pleaded  and  set  forth.  These  stat- 
utes, being  passed  before  the  emigration  of  our  ancestors,  being  applica- 
ble to  our  situation,  and  in  amendment  of  the  law,  constitute  a  part  of 
our  common  law.  A  similar  effect  was  given  by  the  statute  of  10 
Anne,  c.  18,  to  copies  of  deeds  of  bargain  and  sale,  enrolled  under  the 

admission  of  copies  in  evidence  is   founded  ments   miRht  be  wanted  at  different   places 

upon     a     principle     of     great     public     con-  at    the    same    time." 

venience,  in  order  that  documents  of  great  Alderson,  B.,  in  Mortimer  v.  McCallan, 
moment  should  not  be  ambulatory,  and  6  M.  &  W.  58,  67  (1840):  "[If  docu- 
subject  to  the  loss  that  would  be  incurred  ments]  are  not  removable,  on  the  ground 
if  they  were  removable.  The  same  has  of  public  inconvenience,  that  is  upon  the 
been  laid  down  in  respect  of  proceedings  same  footing  in  point  of  principle  as  in 
in  courts,  not  of  record,  copies  whereof  the  case  of  that  which  is  not  removable 
are  admitted,  though  not  strictly  of  a  pub-  by  the  physical  nature  of  the  thing  itself, 
lie  nature";  Abbott,  J.:  "It  is  a  general  .  .  .  The  necessity  of  the  case  in  the  one 
principle  that  copies  are  receivable  in  such  instance,  and  in  the  other  case  the  gen- 
cases  without  the  originals,  from  the  great  eral  public  inconvenience  which  would  fol- 
inconvenience  which  would  result  if  the  low  from  the  books  being  removed,  sup- 
documents  were  taken  to  different  places.  plies  the  reason  of  the  rule." 
There  would  have  been  a  danger  of  loss  Compare  authorities  cited  in  W.,  §§  12I4, 
from  such  a  practice,  and  besides,  the  docu-  1215,    1218. 


230  PREFERENTIAL  RULES.  No.  242. 

Statute  of  Henry  VIII,  when  offered  by  way  of  profert  in  pleading; 
and  since  that  period  a  copy  of  the  enrolment  of  a  bargain  and  sale 
is  held  as  good  evidence  as  the  original  itself.  Such,  then,  being  the 
rule  of  evidence  of  the  common  law  in  regard  to  exemplifications 
tinder  the  Great  Seal  of  public  grants,  the  application  of  it  to  the 
case  now  at  bar  will  be  at  once  perceived,  since  by  the  laws  of 
Georgia  all  public  grants  are  required  to  be  recorded  in  the  proper 
State  department." 

Johnson,  J.,  dissenting:  "If  it  is  the  correct  sense  of  the  common 
law  that  the  exemplification  of  a  patent  is  as  good  evidence  as  the 
patent  itself,  I  am  yet  to  be  made  acquainted  with  the  authority  that 
sustains  the  doctrine.  I  am  sure  that  Page's  case  (5  Coke),  com- 
monly cited  as  the  leading  case  in  its  support,  establishes  no  such 
principle.  It  relies  expressly  on  the  British  statutes  for  the  sufficiency 
•of  the  exemplification  of  the  patent  and  the  right  to  use  it  in  the 
profert.  .  .  .  Were  it  generally  true  as  laid  down,  that  at  common 
Jaw  the  copy  of  the  grant  was  equal  in  dignity  as  evidence  to  the 
original,  still,  unless  so  recognized  in  Georgia,  it  is  not  the  law  of 
Georgia.  Now,  to  say  nothing  of  my  own  'lucubrationes  viginti  an- 
norum,'  there  is  not  a  professional  man  in  Georgia  who  does  not 
know  that  such  has  never  been  the  rule  of  judicial  practice  in  that 
state.  ...  I  make  no  doubt  that  there  are  at  this  moment  thousands 
of  grants  lying  unclaimed  in  the  land  office,  every  one  of  which  has 
been  copied  into  the  register.  The  truth  is,  the  grant  is  a  separate 
thing,  from  the  true  original ;  and  the  facsimile  of  it  (if  it  may  be  so 
called  in  the  register.)  is  nothing  more  than  a  copy;  so  that  the 
paper  here  dignified  with  the  epithet  of  an  exemplification  is  nothing 
more  than  a  copy  of  a  copy^  and  therefore  always  considered  in 
practice  as  evidence  of  an  inferior  order.  The  courts  of  that  state 
have  latterly  relaxed  in  requiring  evidence  of  loss;  but  even  at  this 
day,  such  evidence  cannot  be  received  in  any  of  their  courts,  without 
an  affidavit  from  the  party  presenting  it,  of  his  belief  in  the  loss  or 
destruction   of   the   original." 


COMMONWEALTH   v.   EMERY    (1854). 

2   Gray   80. 

The  defendant  was  tried  on  the  charge  of  being  a  common  seller 
of  intoxicating  liquors.  The  district  attorney,  in  order  to  prove  that 
the  house  was  owned  by  the  defendant,  and  that  the  business 
****  carried  on  there  was  his,  offered  a  paper  purporting  to  be  a 
registry  copy  of  a  deed  of  the  premises  to  the  defendant,  certified  by 
the  register  of  deeds  for  this  county.  The  defendant  objected  to 
the  admission  of  the  copy  of  the  deed  as  evidence,  for  the  reason 
that  he  had  had  no  notice  to  produce  the  original  deed;  but  Perkins,  J.i 
■overruled  the  objection. 


JNO.  1!44.  DOCUMENTARY   ORIGINALS.  231 

Shaw,  C.  J. :  "Upon  consideration,  the  court  are  of  opinion  that 
this  copy  of  a  deed  ought  not  to  have  been  admitted,  without  notice 
to  the  defendant  to  produce  the  original.  The  rule,  as  to  the  use  of 
deeds  as  evidence,  in  this  Commonwealth,  is  founded  partly  on  the 
rules  of  the  common  law,  but  modified,  to  some  extent,  by  the  registry 
system  established  here  by  statute.  The  theory  is  this:  ...  In  all 
cases  original  deeds  should  be  required  if  they  can  be  had;  but  as  this 
would  be  burdensome  and  expensive,  if  not  impossible  in  many  cases, 
some  relaxation  of  this  rule  was  necessary  for  practical  purposes.  .  .  . 
Our  system  of  conveyancing,  modified  by  the  registry  law,  is  that 
each  grantee  retains  the  deed  made  immediately  to  himself,  to  enable 
him  to  make  good  his  warranties.  Succeeding  grantees  do  not,  as  a 
matter  of  course,  take  possession  of  deeds  made  to  preceding  parties 
so  as  to  be  able  to  prove  a  chain  of  title  by  a  series  of  original  deeds. 
Every  grantee,  therefore^  is  the  keeper  of  his  own  deed,  and  of  his 
own  deed  only.  .  .  .  When,  then,  he  has  occasion  to  prove  any  fact 
by  such  deed,  he  cannot  use  a  copy,  because  it  would  be  offering 
inferior  evidence ;  when  in  theory  of  law  a  superior  is  in  his  posses- 
sion or  power ;  it  is  only  on  proof  of  the  loss  of  the  original,  in  such 
case,  that  any  secondary  evidence  can  be  received.  ...  In  cases, 
therefore,  in  which  the  original,  in  theory  of  law,  is  not  in  the  custody 
or  power  of  the  party  having  occasion  to  use  it,  the  certified  office 
copy  is  prima  facie  evidence  of  the  original  and  its  execution,  sub- 
ject to  be  controlled  by  rebutting  evidence.  But  as  this  arises  from 
the  consideration,  that  the  original  is  not  in  the  power  of  the  party 
relying  on  it,  the  rule  does  not  apply  where  such  original  is,  in  theory 
of  law,  in  possession  of  the  adverse  party;  because  upon  notice  the 
adverse  party  is  bound  to  produce  it,  or  put  himself  in  such  position 
that   any   secondary   evidence   may   be   given."^ 


Statutes.  California:  C.  C.  P.  1872,  §  1951,  as  amended  March 
24,  1874;  a  certified  copy  of  a  duly  recorded  instrument  affecting 
realty  "may  also  be  read  in  evidence  with  the  like  effect  as 
"**  the  original,  on  proof,  by  affidavit  or  otherwise,  that  the  original 
is  not  in  the  possession  or  under  the  control  of  the  party  producing 
the  certified  copy;"  amended  March  i,  1889,  so  as  to  read:  "be  read 
in  evidence  with  the  like  effect  as  the  original  instrument  without 
further   proof." 

Illinois:  Rev.  St.  1874,  c.  30,  §  35:  "If  it  shall  appear  to  the 
satisfaction  of  the  Court  that  the  original  deed  so  acknowledged  or 
proved  and  recorded,  is  lost,  or  not  in  the  power  of  the  party  wish- 
ing to  use  it,"  a  certified  copy  is  admissible.  lb.,  §36:  "Whenever 
upon  the  trial  of  any  cause  at  law  or  in  equity  in  this  State,  any 
party  to  said  cause,  or  his  agent  or  attorney  in  his  behalf,  shall, 
orally  in   Court,  or  by  affidavit  to  be  filed  in  said  cause,  testify  and 

I — Compare  the  authorities  cited   in   W.,  §§  1224,    1225. 


232  PREFERENTIAL  RULES.  No.  244. 

state  under  oath  that  the  original"  of  any  instrument  affecting  land, 
duly  recorded,  "is  lost  or  not  in  the  power  of  the  party  wishing  to  use 
it  on  the  trial  of  said  cause,  and  that  to  the  best  of  his  knowledge 
said  original  deed  was  not  intentionally  destroyed  or  in  any  manner 
disposed  of  for  the  purpose  of  introducing  a  copy  thereof  in  place 
of  the  original,"  the  record  or  recorder's  certified  copy  is  admissible." 

New  York :  C.  C.  P.  1877,  §  935 :  "A  conveyance,  acknowledged  or 
proved,  and  certified,  in  the  manner  prescribed  by  law,  to  entitle  it  to  be 
recorded  in  the  county  where  it  is  offered,  is  evidence,  without  further 
proof  thereof.  Except  as  otherwise  specially  prescribed  by  law,  the 
record  of  a  conveyance,  duly  recorded,  within  the  state,  or  a  transcript 
thereof,  duly  certified,  is  evidence,  with  like  effect  as  the  original  con- 
veyance." 

Ibid.,  §  947 :  "An  exemplification  of  the  record  of  a  conveyance  of  real 
property  situated  without  the  state,  and  within  the  United  States,  which 
has  been  recorded  in  the  state  or  territory,  where  the  real  property  is 
situated,  pursuant  to  the  laws  thereof,  when  certified  under  the  hand  and 
seal  of  the  officer,  having  the  custody  of  the  record  is,  if  the  original 
cannot  be  produced,  presumotive  evidence  of  the  conveyance,  and  of  the 
due  execution  thereof." 


REX  V.  WATSON  (1817). 
2  Stark  116. 
High  treason.  It  appeared  that  on  the  26th  of  November  a  person 
of  the  name  of  Castle  took  a  manuscript  to  Seale,  a  printer,  in  order 
that  he  might  print  500  large  copies  for  placards  and  4,000 
small  ones,  advertising  a  meeting  at  Spa  Fields  on  the  2d  of 
December,  and  that  the  prisoner  W'^atson  afterwards  called  upon  him, 
Seale,  and  took  away  25  of  the  large  placards.  Seale  upon  the  trial 
produced  one  of  the  large  ones,  and  another  witness  was  afterward 
asked  whether  similar  placards  had  not  been-  posted  upon  the  walls 
of  the  metropolis.  It  was  objected  for  the  prisoner,  that  no  evidence 
of  the  contents  could  be  received  without  notice  to  the  prisoner  to 
produce  the  original  manuscript;  that  the  original  ought  either  to  be 
produced,  or  proved  to  be  destroyed,  or  in  the  possession  of  the 
prisoner;  that  notice  must  be  proved  to  have  been  given  to  him  to 
produce  it  before  secondary  evidence  could  be  received ;  that  all  the 
printed  placards  were  to  be  considered  as  copies,  and  not  as  originals ; 
and  that  it  by  no  means  followed  that  all  were  alike  because  all  were 
printed.  And  the  case  was  assimilated  to  that  of  Nodin  v.  Murray,  3 
Camp.  228,  which  was  tried  before  Lord  Ellenborough,  where  his 
Lordship  held  that  a  copy  of  a  letter  proved  to  have  been  taken  by  a 
letter-copying  machine,  and  which  was  therefore  necessarily  a  true 
copy,  could  not  be  received  in  evidence  without  notice  to  produce  the 
original.  It  was  also  urged  that  notice  ought  to  have  been  given  to 
produce  the  25  copies  which  had  been  taken  away  by  the  prisoner. 


No.  246.  DOCUMENTARY   ORIGINALS.  233 

Ellenborough,  L.  C.  J.:  "An  order  having  been  given  to  print 
500  copies,  Watson  fetched  away  25 ;  by  this  he  adopted  the  printing 
as  done  in  the  execution  of  an  order  which  he  had  given;  and  when 
he  took  away  25  out  of  a  common  impression,  they  must  be  supposed 
to  agree  in  the  contents."  Bayley^  J.:  "The  objection  is,  that  without 
notice  to  produce  the  original  any  other  evidence  of  the  contents  is 
but  secondary  evidence.  It  appears  to  me  that  that  is  not  the  case, 
for  that  every  one  of  those  worked  off  are  originals,  in  the  nature 
of  duplicate  originals ;  and  it  is  clear  that  one  duplicate  may  be  given 
in  evidence,  without  notice  to  produce  the  other.  If  the  placard  were 
offered  in  evidence  in  order  to  show  the  contents  of  the  original 
manuscript,  there  would  be  great  weight  in  the  objection;  but  when 
they  are  printed  they  all  become  originals ;  the  manuscript  is  dis- 
charged; and  since  it  appears  that  they  are  from  the  same  press,  they 
must  all  be  the  same."  Abbott,  J.:  "If  this  paper  were  offered  in 
order  to  show  what  were  the  contents  of  the  original  manuscript,  it 
might  be  contended  that  sufficient  preparatory  evidence  had  not  been 
given ;  but  in  another  point  of  view  it  appears  to  me  that  the  evi- 
dence is  admissible,  in  order  to  prove  that  Mr.  Watson  knew  the 
contents  of  a  placard  posted  in  the  streets,  relating  to  a  meeting  in 
Spa  Fields,  on  the  2d  of  December. "- 


NICKERSON   V.   SPIXDELL    (1895). 

164  Mass.  25,  41  N.  E.  105. 

Action  for  expenses  incurred  and  services  rendered  in  superin- 
tending the  building  of  a  steamer  at  the  request  of  the  defendant 
Spindell,  managing  agent  of  the  owners.  The  plaintiff's  wife, 
^^^  called  as  a  witness  for  the  plaintiff,  testified  that  her  husband 
had  received  numerous  telegrams  from  Spindell  to  him,  which  had 
been  destroyed.  The  plaintiff  then  offered  secondary  evidence  of  the 
contents  of  these  telegrams.  The  defendants  objected,  on  the  ground 
that  the  originals  of  the  telegraphic  messages  were  the  messages  as 
delivered  to  the  telegraph  company.  The  judge  ruled  that,  where 
the    sender   of   a    telegram    takes   the   initiative,    as   between   hhn   and 

2 — Ellenborough,  L.  C.  J.,  in  Philipson  satisfactory  evidence  of  the  contents  of 
V.  Chase,  2  Camp,  no  (1809):  "If  there  the  other  part  than  any  other  draft  or 
are  two  cotemporary  writings,  the  coun-  copy.  It  is  prepared  with  more  care  than 
terparts  of  each  other,  one  of  which  is  any  other  copy,  and  the  party  who  pro- 
delivered  to  the  opposite  party,  and  the  duces  it,  and  against  whom  it  is  used,  by 
other  preserved,  as  they  may  both  be  con-  taking  and  keeping  it  as  a  part  of  the 
sidered  as  originals,  and  they  have  equal  deed,  admits  its  accuracy.  The  Courts 
claims  to  authenticity,  the  one  which  is  have  therefore  always  required  that  if  one 
preserved  may  be  received  in  evidence,  part  of  a  deed  be  lost,  and  another  part 
without  notice  to  produce  the  one  which  be  in  existence,  it  must  be  produced"; 
was  delivered."  but  .  .  .  "merely  as  secondary  evidence  of 

Best,    C.     J.,    in    Mtinn    v.     Godhold,     3  the  part  that  was  lost." 

Bing.    292    (182s):    "When    there   are    two  Compare    the    authorities    cited    in    VV., 

instruments    executed    as    parts    of    a    deed,  §§  1234,     1237. 
one   of   these    parts   is   more  authentic    and 


234  PREFERENTIAL  RULES.  No.  246. 

the  person  to  whom  it  is  sent  the  original  is  the  message  as  deliv- 
ered to  that  person,  and  that,  on  a  proper  foundation  being  laid,  sec- 
ondary evidence  of  the  contents  of  the  telegrams  was  admissible;  and, 
having  found  that  the  absence  of  the  telegrams  as  delivered  to  the 
plaintiff  was  accounted  for,  allowed  the  witness  to  testify  as  to  their 
contents.  Against  the  objection  of  the  defendants  and  their  excep- 
tions thereto,  she  testified  that  the  telegrams  contained  requests  from 
Spindell  to  her  husband  to  meet  him  at  a  certain  place.  There  was 
evidence  tending  to  show  that  the  telegrams  were  sent  by  Spindell. 

Knowlton,  J. :  "When  the  sender  of  a  telegraphic  message  takes 
the  initiative,  the  message  as  delivered  may,  as  between  him  and  the 
person  to  whom  it  is  sent,  be  treated  as  the  original,  in  the  absence 
of  evidence  to  show  mistake  in  the  transmission  of  it.  Whether  we 
should  go  further,  and  hold  that  the  telegraphic  company  is  so  far 
the  agent  of  the  sender  as  to  bind  him  by  their  errors  in  sending  it, 
it  is  unnecessary  in  this  case  to  decide.  There  is  much  authority  in 
support  of  this  last  proposition,  although  the  contrary  has  been  held 
in  England.     There  was  no  error  in  the  admission  of  the  testimony,"^ 


DOE    V.    HARVEY    (1832). 

I  Moo.  &  Sc.  S74, 

TiNDAL,  C.  J.:  "This  was  an  action  of  trespass  for  the  mesne 
profits.  Upon  the  trial  it  was  proved  that  Harvey,  the  defendant,  had 
occupied  the  premises  in  question  from  May,  1829,  to  May, 
*  1830.  The  plaintiff  offered  in  evidence  a  judgment  in  an  action 
of  ejectment  brought  for  the  same  premises  by  the  present  plaintiff 
against  one  Payne.  The  only  evidence  that  was  given  as  to  the  origin 
or  nature  of  Harvey's  occupation  was.  that  one  Henry  Payne,  the  son 
of  the  defendant  in  the  ejectment,  had  put  him  into  possession.  But, 
as  it  appeared  from  the  same  witness  that  he  had  been  put  into  pos- 
session under  a  written  agreement,  which  agreement  was  not  pro- 
duced, the  parol  evidence  of  Henry  Payne,  as  to  the  landlord  under 
whom  he  held,  or  the  terms  under  which  he  was  let  into  possession, 
was  deemed  insufficient  for  that  purpose.  ...  If  nothing  had  been  in 
issue  but  the  single  fact  whether  Harvey  held  or  occupied  the  land, 
such  fact  might  undoubtedly  be  proved  by  the  payment  of  rent,  decla- 
rations of  the  tenant,  or  other  parol  evidence  sufiicient  to  establish  it. 
notwithstanding  it  appeared  that  he  held  under  an  agreement  in  writ- 
ing. Authorities  to  this  effect  were  cited  in  argument  at  the  bar. 
But  here,  the  question  was,  not  merely  whether  Harvey  held  the 
premises,  but  whether  he  held  them  as  tenant  to  Payne ;  and  of  this 
fact  there  was  no  other  evidence  admissible  than  the  written  agree- 
ment ;  which  was  not  produced." 

3 — Compare   the  authorities  cited   in  W.,  §  1236. 


No.  249.  DOCUMENTARY   ORIGINALS.  235 

LAMB  V.  MOBERLY   (1826). 

5  T.  B.  Monr.  //p. 

Mills,  J. :  "The  plaintiff  in  the  court  below,  sued  the  defendant, 
in  an  action  of  assumpsit,  for  so  much  money  for  a  note  made  by  a 
third  person,  and  sold  and  delivered  by  the  plaintiff  to  the 
^'^°  defendant.  On  the  trial  of  the  issue  of  non  assumpsit,  the 
plaintiff  introduced  the  confessions  of  the  defendant  that  he  had 
bought  such  a  note,  and  had  promised  to  pay  a  certain  sum  therefor, 
at  a  period,  or  rather  on  a  contingency  which  had  happened,  sub- 
stantially agreeing  with  some  of  the  counts  in  the  declaration.  The 
counsel  for  defendant  moved  the  Court  to  exclude  that  evidence, 
until  the  plaintiff"  should  produce  the  note  itself  as  the  best  evidence. 
The  Court  sustained  this  motion.  We  cannot  agree  with  the  Court 
below  .  .  .  that  the  production  of  the  note  was  necessary.  It  could 
only  be  held  necessary  by  not  attending  to  the  distinction  between 
proving  the  existence  and  contents  of  a  note  and  the  sale  of  a  note. 
Of  the  former,  the  note  is  the  better  evidence;  but  of  the  latter  the 
note  furnishes  no  evidence.  .  .  .  The  existence  of  a  note  is  as  cer- 
tainly perceived  by  the  senses  or  acknowledged  in  conversation  as  that 
of  any  other  article  of  commerce;  and  it  might  as  well  be  urged  that 
before  the  acknowledgments  of  a  sale  of  any  other  article  could  be 
given  in  evidence  the  article  itself  must  be  produced  in  court  in  order 
that  the  Court  might  see  that  it  really  existed,  as  that  a  note  thus 
sold  should  be  produced."* 


TILTON  V.  BEECHER  (1875). 

Abbott's  Rep.  (N.  Y.)  I.  389. 

Witness  for  plaintiff:  "[Mr.  Tilton  had  written  the  story  of  the 
whole  affair  for  publication  and  wanted  Mr.  Beecher  to  hear  it  before 
publication,]  and  Mr.  Tilton  said  to  Mr.  Beecher,  T  will  read 
^^^  to  you  one  passage  from  this  statement,  and  if  you  can  stand 
that,  you  can  stand  any  part  of  it,'  and  he  read  to  him  a  passage  from 
the  statement,  which  was  about  as  follows  as  nearly  as  I  can  recol- 
lect." Mr.  Evarts,  for  defendant:  "The  statement  will  speak  for  it- 
self." Mr.  Fullerton,  for  plaintiff:  "What  did  he  read?"  Mr.  Evarts: 
"We  want  that  paper  and  the  part  of  it  that  was  read,  as  it  appeared 
in  that  paper,  and  it  is  not  competent  to  recite  out  of  a  written  paper 
by  oral  proposition  what  the  written  paper  is  the  best  evidence  of." 
Mr.  Fullerton:  "I  propose  to  show  what  communication  was  made  by 
Mr.  Tilton  on  that  occasion  to  Mr.  Beecher;  I  do  not  care  whether 
it  originated  in  his  own  mind,  or  whether  it  was  read  from  a  paper, 
printed  or  written :   it  makes  no  difference :  what  it  was  that  he  said 

4 — Compare   t!ie  autViorities  cited  in   W.,  ^!;    t  .■>  jq-T248. 


236 


PREFERENTIAL   RULES. 


No.  249. 


to  him  is  what  I  have  a  right  to".  Judge  Neilson  :  "I  think  the  wit- 
ness can  state  what  was  said  to  Mr.  Beecher,  although  he  stated  mat- 
ter that  had  been  incorporated  in  writing."^ 


250 


(B)     EXCEPTIONS  TO  THE  RULE. 

COLE  V.  GIBSON   (1750). 

I  Ves.  Sr.  50^. 

In  1733  on  a  treaty  of  marriage  between  Philip  Bennet  and  Miss 
Hallam,  then  about  twenty  years  old,  articles  were  entered  into,  to 
which  were  made  parties  the  intended  husband  and  wife,  the 
defendant  and  Mr.  Ralph  Allen.  The  first  clause  therein  was 
for  securing  an  annuity  of  £100  to  the  defendant  out  of  the  wife's 
estate:  but  every  other  provision  therein  for  benefit  of  the  wife  and 
issue  of  the  marriage  was  made  revocable  by  the  wife,  after  the 
marriage  should  be  had.  About  the  same  time  with  the  articles,  a 
bond  was  given  by  Mr.  Bennet  before  the  marriage  to  pay  the  defend- 
ant £1000,  which  bond  was  afterward  delivered  up  to  be  canceled; 
but  at  what  particular  time  did  not  appear.  A  recovery  was  afterward 
suffered  to  the  uses  of  the  articles.  In  1736  a  new  grant  was  made 
to  the  defendant  of  this  annuity ;  which  was  continued  to  be  paid  for 
some  time  after  the  wife's  death :  but  the  present  bill  was  now  brought 
to  set  it  aside.  Evidence  for  the  plaintiff  to  prove  the  contents  of 
the  bond,  was  objected  to,  as  never  done  unless  where  the  instrument 
itself  cannot  be  had :  whereas  it  appeared  from  the  answer  read,  that 
the  bond  was  delivered  up  to  plaintiff,  and  must  be  in  his  custody. 
For  plaintiff.  This  bill  is  not  to  be  relieved  against  the  bond ;  for 
then  the  objection  would  be  good;  but  here  it  is  made  use  of  as  col- 
lateral evidence,  as  being  part  of  the  transaction,  and  to  prove  that 
it  was  on  account  of  the  marriage,  and  on  no  other  consideration. 
Hardwicke,  L.  C.  J. :  "The  plaintiff  has  read,  what  is  made  evi- 
dence out  of  the  answer,  that  the  bond  was  executed,  and  that  the 
defendant  delivered  it  up  to  the  plaintiff:  which  is  evidence  that  it  is 
in  plaintift''s  custody,  and  to  prove  the  contents  it  must  be  produced.  .  .  . 
A  distinction  is  endeavored  between  a  bill  to  set  aside  the  bond  or 
other  instrument,  and  a  case  wherein  it  is  made  use  of  only  by  col- 
lateral evidence ;  but  there  is  no  such  distinction  in  point  of  evidence. 


5 — Ellenborough,  L.  C.  J.,  in  Smith  v. 
Young,  I  Camp.  439  (1808);  proof  of  a 
demand,  in  an  action  of  trover,  was  oral, 
the  witness  stating  that  he  had  both  orally 
demanded  and  also  in  writing  served  no- 
tice: "I  may  do  an  act  of  this  sort  doubly. 
I  may  make  a  demand  in  words  and  a 
demand  in  writing;  and  both  being  per- 
fect, either  may  be  proved  as  evidence   of 


the  conversion.  If  the  verbal  demand  had 
any  reference  to  the  writing,  to  be  sure  the 
writing  must  be  produced;  but  if  they 
were  concurrent  and  independent,  I  do 
not  see  how  adding  the  latter  could  su- 
persede the  former  or  vary  the  mode  of 
proceeding." 

Compare  the  authorities  cited  in  W.,   §§> 
1243,    1249,    and    Nos.    554-57.    Post. 


No.  251.  DOCUMENTARY    ORIGINALS.  237 

the  rule  being  the  same  whether  it  comes  in  by  way  of  collateral  evidence, 
or  the  very  deed  which  the  bill  is  brought  to  impeach." 


MASSEY  V.  FARMER'S  NATIONAL  BANK   (1885). 

113  III.  334,  338. 

MuLKEY,  J. :  "The  action  below  was  upon  a  promissory  note  pur- 
porting to  have  been  executed  by  Henry  C.  Massey,  Henderson  E. 
Massey  and  George  W.  Laurie.  .  .  .  The  note  was  given  for 
"'^^  money  borrowed  from  the  bank  by  Henry  C.  Massey.  The  ap- 
pellant filed  a  plea,  verified  by  affidavit,  denying  the  execution  of  the 
note,  and  the  cause  was  tried  upon  that  issue,  alone.  .  .  .  The  point 
which  seems  to  be  chiefly  relied  on,  arises  upon  a  motion  to  suppress 
part  of  the  answer  to  the  following  interrogatory :  'You  may  state 
whether  the  note"  (referring  to  the  one  sued  on)  'was  a  renewal  note.' 
Objection  being  made,  unless  the  note  was  produced,  the  witness  then, 
as  we  understand  the  record,  produced  it,  and  proceeded  first  to  read 
the  credits  indorsed  on  it,  the  whole  answer  being  as  follows :  'Paid, 
July  25,  1879,  $275  and  interest  on  note  to  date.  Paid  August  5,  1879, 
$1782.75  and  interest  on  note  to  date.  That  $1782.75  my  father 
owed, — that  is,  he  gave  me  a  deed  to  one  hundred  acres  of  land  in 
1866;  told  me  to  go  to  work  on  it,  and  improve  it,  and  suit  myself,' 
(objection  by  defendant,)  'but  had  never  given  me  a  deed,  and  after 
he  received  notice  from  the  bank  in  1879,  he  goes  to  Jacksonville  and 
deeds  this  one  hundred  acres  of  land  away  from  me,  with  the  excep- 
tion of  forty  acres  where  the  house  and  barn  stand,  and  said  to  me 
and  told  me  to  give  him  a  mortgage  for  $3000,  and  he  would  enable 
me  to  get  a  loan  of  $2000  on  it,  to  pay  upon  this  note.  He  did  that. 
/  had  to  give  him  a  mortgage  for  $3000,  while  I  never  owed  him  a 
dollar  in  the  world.  He  did  that  to  fix  the  bank  so  they  couldn't  get 
anything  off  of  me,  and  he  was  going  to  put  his  property  out  of  his 
hands,  to  avoid  this  note.'  .  .  [The  general  principle]  has  no  applica- 
tion to  the  facts  above  stated.  We  fully  recognize  the  rule  that  when- 
ever the  existence  of  a  deed  or  other  writing  is  directly  involved  in 
a  judicial  proceeding,  whether  as  proof  of  the  precise  question  in 
issue  or  of  some  subordinate  matter  that  tends  to  establish  the  ulti- 
mate fact  or  facts  upon  which  the  case  turns,  such  deed  or  other 
writing  itself  must  be  produced,  or  its  absence  accounted  for,  before 
secondary  evidence  of  its  contents  is  admissible.  Yet  while  this  rule 
is  fully  conceded,  it  is  also  true  that  a  witness,  when  testifying,  may, 
for  the  purpose  of  making  his  statements  intelligible,  and  giving  co- 
herence to  such  of  them  as  are  unquestionably  admissible  in  evidence, 
properly  speak  of  the  execution  of  deeds,  the  giving  of  receipts,  the 
writing  of  a  letter,  and  the  like,  without  producing  the  instrument  or 
writing  referred  to.  To  hold  otherwise  would  certainly  be  productive 
of  great  inconvenience,   and  in   some  cases  would  defeat   the  ends  of 


238  PREFERENTIAL   RULES.  No.  251. 

justice.  References  to  written  instruments  by  a  witness  for  the  pur- 
pose stated  are  to  be  regarded  as  but  mere  inducement  to  the  more 
material  parts  of  his  testimony.  The  present  case  well  illustrates  the 
principle  in  question.  As  remotely  bearing  upon  the  issue  to  be  tried, 
the  plaintiff  sought  to  show  the  appellant  had  avowed  a  purpose  not 
to  pay  the  note — that  he  had  said  he  was  going  to  put  his  property 
out  of  his  hands  in  order  to  defeat  the  claim.  Now  this,  under  the 
issue,  is  the  important  part  of  the  answer  to  the  question  ['whether 
the  note  was  a  renewal  note'],  if  indeed  any  of  it  can  be  so  regarded. 
All,  therefore,  that  was  said  about  the  deeding  of  the  land,  the  giving 
of  the  mortgage,  and  getting  the  loan  of  $2,000,  we  regard  as  mere 
matter  of  inducement  to  the  more  important  part  of  the  testimony."^ 


SLATTERIE  v.  POOLEY  (1840). 

6  M.  &  W.  664. 

Action  on  a  covenant  to  indemnify  the  plaintiff  against  debts  sched- 
uled in  a  composition-deed  and  due  to  creditors  not  signing  it;  plea, 

that   the   debt   in   question   was   not   contained   in   the   schedule. 

At  the  trial,  the  composition  deed  and  schedule  were  produced 
in  evidence  for  the  plaintiff;  but  the  latter,  not  being  duly  stamped, 
was  rejected;  whereupon  the  plaintiff's  counsel  tendered  in  evidence 
a  verbal  admission  by  the  defendant  that  the  debt  mentioned  in  the 
declaration  was  the  same  with  one  entered  in  the  schedule.  This 
evidence  was  objected  to,  on  the  ground  that  the  contents  of  a  writ- 
ten instrument,  which  was  itself  inadmissible  for  want  of  a  proper 
stamp,  could  not  be  proved  by  parol  evidence  of  any  kind;  and  the 
learned  judge  being  of  that  opinion,  the  plaintiff  was  nonsuited. 

Parke,  B.  :  "If  such  evidence  were  inadmissible,  the  difficulties 
thrown  in  the  way  of  every  trial  would  be  nearly  insuperable.  The 
reason  why  such  parol  statements  are  admissible,  ...  is  that  they  are 
not  open  to  the  same  objection  which  belongs  to  parol  evidence  from 
other  sources,  where  the  written  evidence  might  have  been  produced; 
for  such  evidence  is  excluded  from  the  presumption  of  its  untruth 
arising  from  the  very  nature  of  the  case  where  better  evidence  is  with- 
held; whereas  what  a  party  himself  admits  to  be  true  may  reasonably 
be  presumed  to  be  so.  The  weight  and  value  of  such  testimony  is 
quite  another  question."  Abinger,  L.  C.  B.,  "concurred  in  what  was 
said  by  Parke,  B. ;  and  stated  that  he  had  always  considered  it  as 
clear  law,  that  a  party's  own  statements  were  in  all  cases  admissible 
against  himself,  whether  they  corroborate  the  contents  of  a  written 
instrument  or  not."''' 

6 — Compare  the  authorities  cited  in  W.,  Parke,   B.,   in    that  case.  .  .  .  The   doctrine 

5§    1253,    1254.  there   laid   down  is  a  most  dangerous  prop- 

7 — Pennefather,     C.     J.,     in     Lawless    v.  osition.      By    it    a    man    might    be    deprived 

Queale,   8   Ir.   L.   R.   382,   385    (1845):      "I  of   an   estate    £10,000   per   annum,    derived 

cannot     subscribe     to     what     was     said     by  from  his  ancestors  by  regular  family  deeds 


No.  253.  DOCUMENTARY  ORIGINALS,  239 

THE  QUEEN'S  CASE  (1820). 

2  B.  &  B.  286. 

Bill  for  divorce  on  the  ground  of  adultery  and  improper  conduct; 
the  House  of  Lords  put  the  following  questions  to  the  Judges:  "First, 
whether,  in  the  courts  below,  a  party  on  cross-examination 
''"'*  would  be  allowed  to  represent  in  the  statement  of  a  question 
the  contents  of  a  letter,  and  to  ask  the  witness  whether  the  witness 
wrote  a  letter  to  any  person  with  such  contents,  or  contents  to  the 
like  effect,  zviihout  having  first  shown  to  the  witness  the  letter,  and 
having  asked  that  witness  whether  the  witness  wrote  that  letter  and 
his  admitting  that  he  wrote  such  letter?  .  .  .  Thirdly,  whether,  when 
a  witness  is  cross-examined  and,  upon  the  production  of  a  letter  to 
the  witness  under  cross-examination,  the  witness  admits  that  he  wrote 
that  letter,  the  witness  can  be  examined,  in  the  courts  below,  whether 
he  did  not  in  such  letter  make  statements  such  as  the  counsel  shall, 
by  questions  addressed  to  the  witness,  inquire  are  or  are  not  made 
therein;  or  whether  the  letter  itself  must  be  read  as  the  evidence  to 
manifest  that  such  statements  are  or  are  not  contained  therein?" 
Abbott,  C.  J.,  for  the  Judges,  answered  the  first  question  in  the  nega- 
tive: "The  contents  of  every  written  paper  are,  according  to  the  ordi- 
nary and  well-established  rules  of  evidence,  to  be  proved  by  the  paper 
itself,  and  by  that  alone,  if  the  paper  be  in  existence;  the  proper 
course,  therefore,  is  to  ask  the  witness  whether  or  no  that  letter  is 
of  the  handwriting  of  the  witness;  if  the  witness  admits  that  it  is  of 
his  handwriting,  the  cross-examining  counsel  may  at  his  proper  season 
read  that  letter  as  evidence".  The  other  question  was  answered  thus : 
"The  Judges  are  of  opinion,  in  the  case  propounded,  that  the  counsel 
cannot,  by  questions  addressed  to  the  witness,  enquire  whether  or  no 
such  statements  are  contained  in  the  letter,  but  that  the  letter  itself 
must  be  read,  to  manifest  whether  such  statements  are  or  are  not 
contained  in  that  letter.  .  .  .  [The  Judges]  found  their  opinion  upon 
what  in  their  judgment  is  a  rule  of  evidence  as  old  as  any  part  of  the 
common  law  of  England,  namely,  that  the  contents  of  a  written  in- 
strument, if  it  be  in  existence,  are  to  be  proved  by  that  instrument 
itself  and  not  by  parol  evidence." 

and   conveyances,    by    producing  a   witness,  Maule,    J.,    in    Boulter    v.    Pcplow,    9    C. 

or  by  one  or  two  conspirators,  who  might  be  B.    493,    501     (1850):       ""It     [Slatterie    v. 

got  to  swear  they  heard  the  defendant  say  Pooley]    is    certainly    not    very    satisfactory 

he  had  conveyed   away  his   interest  therein  in    its    reasons.  .  .  .  What    the    party    him- 

by    deed,    had    mortgaged    or    otherwise    in-  self  says  is  not  before  the  jury;   but   only 

cumbered   it;    and  thus,   by  this   facility  so  the     witness'     representation     of     what     he 

given,  the  most  open   door  would  be  given  says." 

to    fraud,    and    a    man    might    be    stripped  Compare    the    autliorities    cited    in    W., 

of    his    estate    through     this    invitation    to  §    1256. 
fraud     and     dishonesty." 


240 


PREFERENTIAL    RULES. 


No.  254. 


Henry  Brougham,  Speech  on  the  Courts  of  Common  Law,  Hans. 
Pari.  Deb.,  2d  ser.,  XVIII,  213,  2ip  (Feb.  7,  1828)  :  "If  I  wish  to  put 
a  witness'  memory  to  the  test,  I  am  not  allowed  to  examine  as  to 
^^^  the  contents  of  a  letter  or  other  paper  which  he  has  written.  I  must 
put  the  document  into  his  hands  before  I  ask  him  any  questions  upon 
it,  though  by  so  doing  he  at  once  becomes  acquainted  with  its  con- 
tents, and  so  defeats  the  object  of  my  inquiry.  That  question  was 
raised  and  decided  in  the  Queen's  Case,  after  solemn  argument,  and, 
I  humbly  venture  to  think,  upon  a  wrong  ground,  that  the  writing  is 
the  best  evidence  and  ought  to  be  produced,  though  it  is  plain  that 
the  object  is  by  -no  means  to  prove  its  contents.  Neither  am  I,  in 
like  manner,  allowed  to  apply  the  test  to  his  veracity;  and  yet,  how 
can  a  better  means  be  found  of  sifting  a  person's  credit,  supposing 
his  memory  to  be  good,  than  examining  him  to  the  contents  of  a 
letter,  written  by  him,  and  which  he  believes  to  be  lost?  ...  I  shall 
not  easily  forget  a  case  in  which  a  gentleman  of  large  fortune  ap- 
peared before  an  able  arbitrator,  now  filling  an  eminent  judicial  place, 
on  some  dispute  of  his  own,  arising  out  of  an  election.  It  was  my 
lot  to  cross-examine  him.  I  had  got  a  large  number  of  letters  in  a 
pile  imder  my  hand,  but  concealed  from  him  by  a  desk.  He  was  very 
eager  to  be  heard  in  his  own  cause.  I  put  the  question  to  him :  'Did 
you  never  say  so  and  so  ?'  His  answer  was  distinct  and  ready, — 
'Never.'  I  repeated  the  question  in  various  forms,  and  with  more 
particularity,  and  he  repeated  his  answers,  till  he  had  denied  most 
pointedly  all  he  had  ever  written  on  the  matter  in  controversy.  This 
passed  before  the  rules  in  evidence  laid  down  iri  the  Queen's  Case; 
consequently  I  could  examine  him  without  putting  the  letters  into  his 
hand.  I  then  removed  the  desk,  and  said,  'Do  you  see  what  is  now 
under  my  hand?'  pointing  to  about  fifty  of  his  letters.  'I  advise  you 
to  pause  before  you  repeat  your  answer  to  the  general  question, 
whether  or  not  all  you  have  sworn  is  correct.  He  rejected  my  advice, 
and  not  without  indignation.  Now,  those  letters  of  his  contained 
matter  in  direct  contradiction  to  all  he  had  sworn.  I  do  not  say  that 
he  perjured  himself, — far  from  it.  I  do  not  believe  that  he  inten- 
tionally swore  what  was  false ;  he  only  forgot  what  he  had  written 
some  time  before.  Nevertheless  he  had  committed  himself,  and  was 
in   my  client's   power. "^ 


Statute:  1854,  St.  17  &  18  Vict,  c  125,  §24:    "A  witness  may  be  cross-ex- 
amined as  to  previous  statements  made  by  him  in  writing  or  reduced 
into  writing,  relative  to  the  subject-matter  of  the  cause,  without 


255 


such  writing  being  shown  to  him ;  but  if  it  is  intended  to  contra- 


diet  such  witness  bv  the  writing,  his  attention  must,  before  such  contra- 


%—W.  M.  Best,  Evidence,  §  478  (1849): 
"By  requiring  the  document  containing  the 
supposed    contradict'on    to    be    put    into    the 


hands  of  the  witness  in  the  first  instance, 
the  great  principle  of  cross-examination  is 
sacrificed    at    once.   .   .   .  Yet,    according    to 


No.  256.  DOCUMENTARY    ORIGINALS.  241 

dictory  proof  can  be  given,  be  called  to  those  parts  of  the  writing  which 
are  to  be  used  for  the  purpose  of  so  contradicting  him;  provided  al- 
ways that  it  shall  be  competent  for  the  judge,  at  any  time  during  the 
trial,  to  require  the  production  of  the  writing  for  his  inspection,  and  he 
may  thereupon  make  such  use  of  it'  for  the  purposes  of  the  trial  as  he 
shall  think  fit." 

Day,  Common  Law  Procedure  Acts,  4th  ed.,  2-jy  (1874):  "The 
efifect  is  this:  the  witness  in  the  first  instance  may  be  asked  whether 
he  has  made  such  and  such  a  statement  in  writing  without  its  being 
shown  to  him.  If  he  denies  that  he  has  made  it,  the  opposite  party 
cannot  put  in  the  statement  without  first  calling  his  attention  to  it 
(showing  it,  or  at  least  reading  it  to  him)  and  to  any  parts  of  it 
relied  upon  as  a  contradiction."^ 


(C)     RULES  ABOUT  VARIOUS  KINDS    OF   SECONDARY 
EVIDENCE  OF  CONTENTS. 

DOE  dem.  GILBERT  v.  ROSS   (1840). 
7  M.  &  W.  102. 

Ejectment;  to  prove  a  deed  of  settlement,  the  original  of  which 
was  in  the  hands  of  a  third  person,  who  refused  to  produce  it,  the 
plaintiff  tendered  a  copy  of  the  deed ;  but  upon  examination  it 
*^"  appeared  that  this  had  been  made  an  attested  copy,  and  was 
unstamped,  and  it  was  consequently  rejected.  It  was  then  proposed 
to  read,  as  secondary  evidence  of  the  contents  of  the  deed,  a  short- 
hand writer's  notes  of  the  proceedings  of  the  trial  in  the  former 
action,  when  the  settlement  had  been  produced  and  proved  by  the 
then  defendant  Weetman.  This  evidence  was  objected  to,  but  Lord 
Denman  allowed  it  to  be  admitted,  and  the  short-hand  writer's  notes 
were  read.  The  ground  of  appeal  was  that  the  short-hand  writer's 
notes  were  not  receivable  when  it  appeared  that  a  copy  of  the  settle- 
ment was  in  existence. 

Abinger,  L.  C.  B.  :  "Upon  examination  of  the  cases,  and  upon 
principle,  we  think  there  are  no  degrees  of  secondary  evidence.  The 
rule  is  that  if  you  cannot  produce  the  original,  you  may  give  parol 
evidence  of  its  contents.  If  indeed  the  party  giving  such  parol  evi- 
dence appears  to  have  better  secondary  evidence  in  his  power  which 
he  does  not  produce,  that  is  a  fact  to  go  to  the  jury,  from  which  they 
might    sometimes   presume   that   the   evidence   kept   back   would   be   ad- 

the  practice  under  the  resolutions  in  Queen  full     warning    of    the    danger    he    had    to 

Caroline's    Case,    if   tlie    witness    had    taken  avoid   and    full    opportunity    of  shaping  his 

the  precaution  to  reduce  his  previous  state-  answers    to    meet   it." 

nient    to    writing,    the    writing   must    be    put  9 — Compare    the   authorities   cited   in   W., 

into    his    hands    accompanied    by    the    ques-  §     1263. 

tion  whether  he   wrote   it,   thus  giving  him 


242  PREFERENTIAL   RULES.  No.  256, 

verse  to  the  party  withholding  it.  But  the  law  makes  no  distinction 
between  one  class  of  secondary  evidence  and  another."  Alderson^  B.: 
"The  objection  [to  secondary  evidence]  must  arise  from  the  nature  of 
the  evidence  itself.  If  you  produce  a  copy,  which  shows  that  there 
was  an  original,  or  if  you  give  parol  evidence  of  the  contents  of  a 
deed,  the  evidence  itself  discloses  the  existence  of  the  deed.  But  re- 
verse the  case;  the  existence  of  an  original  does  not  show  the  exist- 
ence of  any  copy;  nor  does  parol  evidence  of  the  contents  of  a  deed 
show  the  existence  of  anything  except  the  deed  itself.  If  one  species 
of  secondary  evidence  is  to  exclude  another,  a  party  tendering  parol 
evidence  of  a  deed  must  account  for  all  the  secondary  evidence  that 
has  existed.  He  may  know  of  nothing  but  the  original,  and  the  other 
side  at  the  trial  may  defeat  him  by  showing  a  copy,  the  existence  of 
which  he  had  no  means  of  ascertaining.  Fifty  copies  may  be  in  ex- 
istence unknown  to  him,  and  he  would  be  bound  to  account  for  them 
all."" 


CLEMENS  V.  CONRAD  (1869). 
19  Mich.  175. 

Assumpsit.  A  witness,  called  by  the  defendants,  was  asked,  on 
cross-examination,  "were  you  indicted,  in  1865,  in  Sandusky,  for 
smuggling?"  This  question  was  objected  to,  but  allowed  by  the 
""•       Circuit  Judge. 

CooLEY,  C.  J. :  "The  right  to  inquire  of  a  witness,  on  cross-exami- 
nation, whether  he  has  not  been  indicted  and  convicted  of  a  criminal 
offense,  we  regard  as  settled  in  this  State  by  the  case  of  Wilbur  v. 
Flood,  16  Mich.  40.  It  is  true  that  in  that  case  the  question  was, 
whether  the  witness  had  been  confined  in  State  prison ;  not  whether  he 
had  been  convicted ;  but  confinement  in  State  prison  presupposes  a 
conviction  by  authority  of  law,  and  to  justify  the  one  inquiry  and 
not  the  other  would  only  be  to  uphold  a  technical  rule,  and  at  the 
same  time  point  out  an  easy  mode  of  evading  it  without  in  the  least 
obviating  the  reasons  on  which  it  rests.  We  think  the  reasons  for 
requiring  record  evidence  of  conviction  have  very  little  application  to 
a  case  where  the  party  convicted  is  himself  upon  the  stand  and  is 
questioned  concerning  it  with  a  view  to  sifting  his  character  upon 
cross-examination.  The  danger  that  he  will  falsely  testify  to  a  con- 
viction which  never  took  place,  or  that  he  may  be  mistaken  about  it, 
is  so  slight  that  it  may  almost  be  looked  upon  as  purely  imaginary; 
while  the  danger  that  worthless  characters  will  unexpectedly  be  placed 
upon  the  stand,  with  no  opportunity  for  the  opposite  party  to  produce 
the  record  evidence  of  their  infamy,  is  always  palpable  and  immi- 
nent."^^ 

10 — Compare  the  authorities  cited  in  W.,  ii — Ellcnhorough,    L.    C.    J.,    in    R.    v, 

i    1268.  Castell    Careinion,    8    East    77,    79    (1806), 


No.  258.  DOCUMENTARY  ORIGINALS.  243. 

STATE  V.  LYNDE   (1885). 
77  Me.  561,  I  Atl.  68y. 

Indictment  for  keeping  a  liquor  nuisance.  The  court  admitted  a 
copy  of  the  record  of  the  collector  of  internal  revenue,  showing  that 
defendant  had  a  license  as  retail  liquor  dealer.  This  copy  was 
^^^  made  and  certified  by  a  clerk  in  the  office  of  the  collector,  and 
the  clerk  was  examined  as  a  witness  on  the  stand,  and  swore  that  the 
copy  was  correct  and  true.     Defendant  excepted. 

Peters,  C.  J. :  "The  original  record  of  payments  for  licenses,  kept 
in  the  office  of  the  collector  of  internal  revenue,  would  have  been 
proper  evidence ;  and  a  copy  of  the  same,  certified  by  the  collector 
himself,  would  have  been.  A  copy  of  the  record  authenticated  merely 
by  a  clerk  in  the  collector's  office,  an  unofficial  person,  standing  with- 
out other  proof,  would  be  neither  sufficient  nor  admissible.  But  it 
was  in  this  case  supported  by  the  testimony  of  the  clerk  as  a  witness, 
who  swears  that  he  personally  examined  the  record  and  made  a  true 
copy.  The  copy,  sustained  by  his  oath,  was  admissible,  if  the  mode  of 
proof  styled  'sworn  copies'  or  'examined  copies'  is  allowable  by  the 
practice  in  this  state.  Examined  copies  are  in  England  resorted  to 
as  the  most  usual  mode  of  proving  records.  The  mode  .  .  .  seems  to 
have  prevailed  in  many  of  the  States,  including  Pennsylvania  and 
New  York.  It  was  at  an  early  date  adopted  in  some  of  the  Federal 
Courts.  It  is  not  an  unknown  mode  of  proof  in  New  England.  .  .  . 
Why  not  admissible  ?  The  evidence  is  as  satisfactory  certainly  as  a 
certified  copy.  In  the  latter  case  we  depend  upon  the  honor  and  in- 
tegrity of  an  official,  and  in  the  former  upon  the  oath  of  a  competent 
witness.  In  either  case,  an  error  or  fraud  is  easily  detectible.  Prob- 
ably the  reason  why  such  a  mode  of  proof  had  not  been  much  known, 
if  known  at  all,  in  our  practice,  is  that  it  is  cheaper  and  easier  to 
produce  [certified]  copies;  and  if  a  witness  comes  instead,  it  is  more 
satisfactory  to  have  [as  here]  the  officer  who  controls  the  records 
bring  them  into  court."^^ 

on    a    similar    question    being    raised:      "It  party    to    prove     such    conviction;     and    a 

cannot    seriously    be    argued    that    a    record  certificate     containing     the     substance     and 

can    be    proved    by    the    admission    of    any  effect    only    (omitting    the    formal    part)    of 

witness.       He     may     have     mistaken     what  the  indictment   and  conviction   for  such  of- 

passed    in    court,    and    may    have    been    or-  fence,"    signed    by   the   clerk   or   other   cus- 

dered    on    his    knees    for    a    misdemeanor.  todian,    shall    suffice,    "upon    proof    of    the 

This    can    only    be    known    by    the    record."  identity  of   the   person."      California,    C.    C. 

Statutes:    England,    1854,    St.    17    and    18  P.    1872,    §    2051:      "It   may   be   shown    by 

Vict.  c.  125,  §  25:  "A  witness  in  any  cause  the    examination     of    the    witness,    or    the 

may    be    questioned    as    to    whether    he    has  record    of   the   judgment,    that   he   had   been 

been    convicted    of    any    felony    or    misde-  convicted     of    a     felony."         Compare    the 

meanor,    and    upon    being   so    questioned,    if  authorities   in   W.,    §    1270. 

he    either    denies    the    fact    or     refuses    to  12 — Compare  the  authorities  cited  in  \V., 

answer,   it  shall  be  lawful   for  the  opposite  §    1273. 


244  PREFERENTIAL   RULES.  No.  259. 

WINN  V.  PATTERSON  (1835). 

p  Pet.  66^,  d//. 

Ejectment.  Story,  J.:  "The  plaintiff,  to  maintain  an  issue  on  his 
part,  gave  in  evidence  a  copy  of  a  grant  from  the  state  of  Georgia 
to  Basil  Jones,  for  seven  thousand  three  hundred  acres,  includ- 
*^"  ing  the  lands  in  controversy,  dated  the  24th  of  May  1787,  with 
a  plat  of  survey  thereto  annexed.  He  then  offered  a  copy  of  a  power 
of  attorney  from  Basil  Jones  to  Thomas  Smyth,  Junior,  purporting  to 
be  dated  the  6th  of  August  1793,  and  to  authorize  Smyth,  among  other 
things,  to  sell  and  convey  the  tract  of  seven  thousand  three  hundred 
acres,  so  granted,  which  power  purported  to  be  signed  and  sealed  in 
the  presence  of  'Abram  Jones,  J.  P.,  and  Thomas  Harwood,  Jun. ;' 
and  the  copy  was  certified  to  be  a  true  copy  from  the  records  of 
Richmond  county,  Georgia,  and  recorded  therein,  on  the  nth  day  of 
July  1795.  And  to  account  for  the  loss  of  the  original  power  of  at- 
torney, of  which  the  copy  was  offered,  and  of  the  use  of  due  diligence 
and  search  to  find  the  same,  the  plaintiff  read  the  afiidavit  of  William 
Patterson,  the  lessor  of  the  plaintiff.  .  .  .  The  plaintiff  also  read  in 
evidence  the  deposition  of  William  Robertson,  who  stated  that  he  was 
deputy  clerk  of  the  court  of  Richmond  county  in  1794,  and  clerk  in 
1795'  •  •  •  that  the  record  of  the  power  of  attorney  from  B.  Jones  to 
Thomas  Smyth,  Jun.,  made  by  himself  while  clerk  of  the  court,  is  a 
copy  of  an  original  power  of  attorney,  which  he  believes  to  have  been 
genuine,  for  that  the  official  signature  of  Abram  Jones  must  have  in- 
duced him  to  commit  the  same  to  record;  and  that  the  copy  of  the  said 
power  of  attorney  transmitted  with  the  deponent's  depositions  (the  copy 
before  the  court),  had  been  compared  with  the  record  of  the  original 
made  by  himself  in  Richmond  county,  and  is  a  true  copy.  The  re- 
maining question  then,  is,  whether  the  copy  now  produced  was 
proper  secondary  proof,  entitled  by  law  to  be  admitted  in  evidence. 
The  argument  is,  that  it  is  a  copy  of  a  copy,  and  so  not  admissible; 
and  that  the  original  record  might  have  been  produced  in  evidence. 
We  admit  that  the  rule,  that  a  copy  of  a  copy  is  not  evidence, 
is  correct  in  itself,  when  properly  understood  and  limited  to  its  true 
sense.  The  rule  properly  applies  to  cases  where  the  copy  is  taken 
from  a  copy,  the  original  being  still  in  existence  and  capable  of  being 
compared  with  it,  for  then  it  is  a  second  remove  from  the  original; 
or  where  it  is  a  copy  of  a  copy  of  a  record,  the  record  being  still  in 
existence  by  law  deemed  as  high  evidence  as  the  original,  for  then 
also  it  is  a  second  remove  from  the  record.  But  it  is  quite  a  different 
question  whether  it  applies  to  cases  of  secondary  evidence  where  the 
original  is  lost,  or  the  record  of  it  is  not  in  law  deemed  as  high  evi- 
dence as  the  original;  or  where  the  copy  of  a  copy  is  the  highest  proof 
in  existence.  On  these  points  we  give  no  opinion;  because  this  is  not 
in  our  judgment  the  case  of  a  mere  copy  of  a  copy  verified  as  such,  but  it 


No.  260.  DOCUMENTARY   ORIGINALS.  245 

is  the  case  of  a  second  copy  verified  as  a  true  copy  of  the  original.  Mr. 
Robertson  expressly  asserts  that  the  record  was  a  copy  of  the  original 
power  made  by  himself,  and  that  the  present  copy  is  a  true  copy  which 
has  been  compared  by  himself  with  the  record.  In  effect,  therefore, 
he  swears  that  both  are  true  copies  of  the  original  power.  In  point 
of  evidence  then,  the  case  stands  precisely  in  the  same  predicament 
as  if  the  witness  had  made  two  copies  at  the  same  time  of  the  original, 
and  had  then  compared  one  of  them  with  the  original,  and  the  other 
with  the  first  copy,  which  he  had  found  correct.  .  .  .  We  are  there- 
fore of  opinion,  that  there  was  no  error  in  the  court  in  admitting 
the  copy  in  evidence  under  these  circumstances."^^ 


Chief  Baron   Gilbert.  Evidence,  96    (ante   1726)  :  "A  copy  of  the 
deed  must  be  proved  by  a  witness  that  compared  it  with  the  original; 
for  there  is  no  proof  of  the  truth  of  the  copy,  or  that  it  hath  any 
*-6ya    relation  to  the  deed,  unless  there  be  somebody  to  prove  its  com- 
parison with  the  original."^* 


SUB-TITLE  II. 

RULES  OF  TESTIMONIAL  PREFERENCE. 

A:     Preference  for  an  Attesting  Witness. 

Professor  James  Bradley  Thayer,  Preliminary  Treatise  on  Evi- 
dence, 502  (1898)  :  "[The  rule]  has  a  clear  and  very  old  origin.  Such 
persons  belonged  to  that  very  ancient  class  of  transaction  or  busi- 
"^  "  ness  witnesses,  running  far  back  into  the  old  Germanic  law,  who 
were  once  the  only  sort  of  witnesses  that  could  be  compelled  to  come 
before  a  court.  Their  allowing  themselves  to  be  called  in  and  set  down 
as  attesting  witnesses  was  understood  to  be  an  assent  in  advance  to  such 
a  compulsory  summons.  Proof  by  witnesses  could  not  be  made  by 
those  who  merely  happened  casually  to  know  the  fact.  However  exact 
and  full  the  knowledge  of  any  person  might  be,  he  could  not,  in  the 
old  Germanic  procedure,  be  called  in  court  as  a  witness,  unless  he 
had  been   called  at  the  time  of  the  event  as   a   preappointed  witness. 

13 — Chief     Baron     Gilbert,     Evidence,     8  to  cases  where  the  original  is  still  in  exist- 

{anle    1726):    "A    copy    of    a    copy    is    no  ence   and   capable    of   being  compared   with 

evidence;    for    the    rule    demands    the    best  it,   or   [2]    where   it   is   the  cepy   of  a  copy 

evidence   that   the   nature   of  the    thing  ad-  of  a  record,  the  record  being  still  in  exist- 

mits,   and   a  copy  of  a  copy  cannot  be   the  ence,   and   being   by   law   as   high    evidence 

best   evidence;    for   the   farther   off   a   thing  as    the   original." 

lies    from    the   first    original    truth,   so   much  Compare     the     authorities     cited     in     VV., 

the    weaker    must    the    evidence    be."  §    1275. 

Foster,  J.,  in  Cameron  v.  Peck,  37  Conn.  14 — Compare  the  authorities  cited  in  VV., 

763    (1871):      "The   rule   that   a   copy   of   a  §    1278. 
copy    is   not   evidence   properly   applies    [i] 


246  PREFERENTIAL   RULES.  No.  260. 

It  was  a  part  of  such  a  system  and  in  accordance  with  such  a  set  of 
ideas  that  witnesses  formally  allowed  their  names  to  be  written  into 
deeds  in  large  numbers.  When  jury  trial,  or  rather  proof  by  jury, 
as  it  originally  was,  came  in,  the  old  proof  by  witnesses  was  joined  with 
it  when  the  execution  of  the  deed  was  denied;  and  the  same  process 
that  summoned  the  twelve,  summoned  also  these  witnesses.  The  phrase 
of  the  precept  to  the  sheriff  was  summone  duodccim  (etc.  etc.)  cum 
aliis.  The  presence  of  these  witnesses  was  at  first  as  necessary  as 
that  of  the  jury.  .  .  .  After  still  another  century,  in  1562-3,  process 
against  all  kinds  of  witnesses  was  allowed,  requiring  them  to  come  in, 
not  with  the  jury  or  as  a  part  of  the  jury,  but  to  testify  before  them 
in  open  court,  and  then  the  old  procedure  of  summoning  such  [attest- 
ing] witnesses  with  the  jury  seems  to  have  died  out;  [but  they  must 
still  be  summoned  as  witnesses.]  ...  As  late  as  the  early  part  of  the 
eighteenth  century  it  was  doubtful  whether  a  deed  could  be  proved 
at  all,  if  the  attesting  witnesses  came  in  and  denied  it.  Half  a  cen- 
tury later,  Lord  Mansfield,  while  reluctantly  yielding  to  what  he  stig- 
matized as  a  captious  objection  that  you  must  produce  the  witness, 
declared  that  Tt  is  a  technical  rule  that  the  subscribing  witness  must 
be  produced;  and  it  cannot  be  dispensed  with  unless  it  appeared  that 
his  attendance  could  not  be  produced.'  " 


Common  Law  Procedure  Commission  (Jervis,  Martin,  Walton, 
Bramwell,  Willes,  Cockburn),  Second  Report  (1853),  23:  "We  do 
not  purpose  to  meddle  with  the  preappointed  evidence  of  execution 
^  ^  required  either  by  the  Legislature  or  by  persons  creating  powers; 
but  we  think  it  deserving  of  serious  consideration  whether  this  formal 
•  proof  of  the  execution  of  written  documents  may  not  in  other  cases 
be  dispensed  with,  where  the  execution  is  either  admitted  or  capable 
of  other  proof.  The  principle  on  which  the  necessity  for  producing 
the  attesting  witness  rests  is  that  the  witness  is  supposed  to  be  con- 
versant with  all  the  circumstances  under  which  the  deed  was  executed. 
But  it  is  notorious  that  in  practice  the  attesting  witness  in  the  major- 
ity of  instances  knows  nothing  of  the  transaction;  the  instrument 
having  been  prepared,  a  clerk,  a  servant,  or  a  neighbor  is  called  in  to 
attest  it.  Added  to  which,  as  parol  testimony  is  not  admitted  to  con- 
tradict or  vary  the  terms  of  a  written  instrument,  the  occasions  are 
few  indeed  where  the  evidence  of  the  attesting  witness  goes  further 
than  to  prove  the  execution  of  the  writing.  On  the  other  hand,  the 
necessity  of  calling  the  attesting  witness,  where  the  execution  of  the 
document  is  not  the  real  matter  in  dispute  and  where  there  are  no 
concomitant  circumstances  to  be  inquired  into,  is  often  attended  with 
diilficulty  and  expense,  and  sometimes  leads  to  the  defeat  of  justice. 
Cases  have  occurred  where,  in  tracing  a  title,  numerous  witnesses  from 
■distant  parts  have  been  rendered  necessary  to  prove  the  formal  execu- 
tion of  deeds,  though  their  execution  was  not  really  in  dispute  and  the 


I 


No.  262.  ATTESTING  WITNESS.  247 

handwriting  to  all  might  have  been  proved  by  a  single  witness,  and 
doubtless  would  have  been  admitted  but  for  the  difficulty  which  it  was 
thought  would  by  the  existing  rule  be  thrown  in  the  way  of  the  party 
alleging  title.  It  also  sometimes  happens  in  the  course  of  a  cause  that 
the  adversary's  case  renders  it  necessary  to  give  in  evidence  a  docu- 
ment which  it  was  not  supposed  would  be  required,  or  a  document  is 
produced  by  a  witness  on  his  subpoena  which  turns  out,  contrary  to 
the  expectations  of  the  party  requiring  it,  to  be  attested;  the  attesting 
witness  is  not  at  hand ;  yet  the  signature  of  the  party  might  be  easily 
proved,  or  the  witness  producing  the  instrument  may  have  heard  him 
admit  the  execution ;  nevertheless  the  document  cannot  be  received, 
and  the  party  requiring  it  loses  his  cause.  When  the  genuineness  of 
the  document  is  not  really  in  dispute,  it  is  clear  that  the  parties  ought 
not  to  be  limited  to  any  particular  witness  to  prove  the  execution.  When 
the  genuineness  is  in  dispute,  the  party  producing  it  will  be  sure  to  call 
the  attesting  witness,  as  the  absence  of  the  latter  would  throw  the 
greatest  discredit  on  the  instrument.  We  therefore  recommend  that, 
except  in  cases  where  the  evidence  of  attestation  is  requisite  to  the 
validity  of  the  instrument,  an  attesting  witness  need  not  be  called." 


Statutes:    England:     1854,   St.   17  &  18  Vict.  c.   125,  §  26:     "It 

shall  not  be  necessary  to  prove  by  the  attesting  witness  any  instrument 

to  the  validity  of  which  attestation  is  not  requisite;  and  such  in- 

strument  may  be  proved  by  admission,  or  otherwise,  as  if  there 

had  been  no  attesting  witness  thereto." 

Illinois:  Rev.  St.  1874,  c.  51,  §  51:  Whenever  any  instrument  "not 
required  by  law  to  be  attested  by  a  subscribing  witness"  is  offered  in  a 
civil  cause,  "and  the  same  shall  appear  to  have  been  so  attested,  and  it 
shall  become  necessary  to  prove  the  execution  of  any  such  deed  or  other 
writing  otherwise  than  as  now  provided  by  law,  it  shall  not  be  neces- 
sary to  prove  the  execution  of  the  same  by  a  subscribing  witness  to  the 
exclusion  of  other  evidence,  but  the  execution  of  such  instrument  may 
be  proved  by  secondary  evidence  without  producing  or  accounting  for 
the  absence  of  the  subscribing  witness  or  witnesses." 

Massachusetts:  St.  1897,  c.  386,  Rev.  L.  1902,  c.  175,  §  70:  "The 
signature  to  an  attested  instrument  or  writing,  except  a  will,  may  be 
proved  in  the  same  manner  as  if  it  were  not  attested." 

Nczu  York,  Laws  1883,  c.  195.  §  i :  "Except  in  the  case  of  written 
instruments  to  the  validity  of  which  a  subscribing  witness,  or  subscribing 
witnesses,  is,  or  are  necessary,  whenever,  upon  the  trial  of  any  action, 
civil  or  criminal,  or  upon  the  hearing  of  any  judicial  proceeding,  a  writ- 
ten instrument  is  offered  in  evidence,  to  which  there  is  a  subscribing 
witness,  it   shall    not    be   necessary    to   call    such    subscribing   witness, 


248  PREFERENTIAL   RULES.  No.  2G2. 

but  such  instrument  may  be  proved  in  the  same  manner  as  it  might  be 
proved  if  there  was  no  subscribing  witness  thereto."^ 


TARRANT  v.  WARE   (1862). 

25  N.   Y.  425. 

DeniOj  J. :  "The  only  question  which  admits  of  argument  arises 
out  of  the  position  that  the  publication  of  the  instrument  as  the  testa- 
trix's will  was  not  made  in  the  presence  of  one  of  the  subscribing 
^"*  witnesses,  and  that  the  attestation  of  that  witness  was  not  made 
at  the  request  of  the  testatrix.  The  two  attesting  witnesses  were  H. 
B.  Newton  and  Mrs.  Quimby.  The  former  drew  the  will,  and  he  testi- 
fied before  the  surrogate  that  the  testatrix  declared  it  to  be  her  will 
in  the  presence  of  Mrs.  Quimby  as  well  as  of  himself,  and  that  she 
requested  them  both  to  sign  it  as  witnesses.  Mrs.  Quimby,  on  the 
contrary,  though  she  signed  her  name  to  a  full  attestation  clause,  testi- 
fied before  the  surrogate  that  she  was  not  requested  by  the  testatrix  to 
sign  the  will  as  a  witness,  and  that  there  was  no  publication  of  the  in- 
strument as  her  last  will  and  testament.  Her  account  of  the  matter  is, 
that  being  at  the  time  on  a  visit  at  the  house  of  Mr.  Ware,  she  was 
called  by  him  into  the  room  where  Mrs.  Ware,  the  testatrix  (who  was 
her  aunt),  was  lying  in  bed;  that  the  will  was  then  placed  before  the 
testatrix,  who  signed  it,  and  that  it  was  then  signed  by  Newton,  who 
directed  her,  the  witness,  to  sign  under  his  name",  which  she  did.  She 
testified  that  during  this  time  nothing  was  said  by  any  person  in  the 
room  except  what  fell  from  Newton  in  requesting  her  to  sign,  and  ex- 
cept that  when  the  testatrix  was  affixing  her  signature,  her  husband, 
who  was  standing  at  the  foot  of  the  bed,  desired  her  to  hurry.  She 
moreover  declared  that  she  did  not  know  that  the  instrument  was  a 
will  until  after  the  death  of  Mrs.  Ware.  If  the  facts  are  as  stated  by 
her,  the  will  was  not  duly  executed,  and  it  ought  to  have  been  refused 
probate.  Prior  to  any  adjudication  upon  the  subject,  it  might 
have  been  argued  with  some  plausibility  that  the  nature  and  objects 
of  the  provisions  declaring  a  certain  number  of  subscribing  witnesses 
necessary  to  a  valid  will  required  that  the  number  specified  should 
unite  in  testifying  to  an  execution  and  attestation  of  the  instrument  in 
the  manner  required  by  the  act;  or  at  least  that  the  will  could  not  be 
established  if  a  part  or  all  of  them  should  deny  the  existence  of  the 
facts  requisite  to  show  a  proper  execution.  The  witnesses  were  sup- 
posed to  be  persons  selected  by  the  testator  to  bear  witness  that  he 
had  actually  executed  the  paper  with  a  knowledge  of  its  contents  and 
in  the  form  prescribed  by  law  and  that  he  was  of  suitable  age  and 
capacity  and  not  under  restraint ;  if  the  persons  thus  selected  could 
not  or  would  not  affirm  the  existence  of  these  facts,  the  intention  of 
the  law   (it  might  be  said)   would  not  be  answered;     .     .     .     [and]  if 

I — Compare  the   authorities  cited   in   W.,  §    1290. 


No.  264.  ATTESTING  WITNESS.  249 

the  testimony  of  the  chosen  witnesses,  when  unfavorable  to  the  will, 
could  be  disregarded,  a  will  may  be  set  up  and  established  by  testi- 
mony not  authorized  by  the  statute  and  which  the  Legislature  had  not 
considered  perfectly  safe  in  ordinary  cases.  But,  on  the  other  hand, 
it  was  soon  seen  that  the  attesting  witnesses  might  forget  the  facts  to 
which  they  had  once  attested,  and  that  it  was  not  impossible  that  they 
might  be  tampered  with  by  interested  parties  and  thus  be  induced  to 
deny  on  oath  the  facts  which  they  had  been  selected  to  witness  and  to 
depose  to.  This  view  prevailed  with  the  Courts.  .  .  .  Whether 
their  [the  witnesses']  denial  of  what  they  had  attested  proceeds  from 
perversity  or  want  of  recollection,  the  testament  may  in  either  case 
be  supported."- 


DOE   V.   HINDSON    (1765). 

I  Day  41,  51. 

Lord  Camden  :  "The  Legislature  set  up  these  witnesses  as  a  guard, 
to  protect  the  testator  from  fraud  in  that  critical  minute  when  he  was 
about  to  execute  his  will.  .  .  .  There  is  a  great  difference 
between  the  method  of  proving  a  fact  in  a  Court  of  justice  and 
the  attestation  of  that  fact  at  the  time  it  happens.  .  .  .  The  new 
thing  introduced  by  this  statute  [of  Frauds]  is  the  attestation ;  the 
method  of  proving  this  attestation  stands  as  it  did  upon  the  old  com- 
mon-law principles.  Thus,  for  instance,  one  witness  is  sufficient  to 
prove  what  all  three  have  attested;  and,  though  that  witness  must  be 
a  subscriber,  yet  that  is  owing  to  the  general  common-law  rule  that, 
where  a  witness  has  subscribed  an  instrument,  he  must  be  always  pro- 
duced, because  it  is  the  best  evidence.  This  we  see  in  common  experi- 
ence; for  after  the  first  witness  has  been  examined,  the  will  is  always 
read.  .  .  .  This  [above  distinction],  I  am  afraid,  has  not  always 
been  attended  to;  but  some  persons  have  been  apt  to  reason  upon  this 
point  as  if  the  statute  had  directed  the  will  to  be  proved  by  three  cred- 
ible witnesses ;  forgetting  the  difference  between  the  subscription  and 
the  proof  of  that  subscription."^ 

2 — Lumpkin,    J.,    in    Gillis    v.    Gillis,    96  or    more    of   the    essential    facts    should    be 

Ga.    I,    IS,    23    S.    E.    107    (1895):    "[The  proved   by   all,    or   any   number,   of   the   at- 

attesting    witnesses    are,]    unless    accounted  testing   witnesses.      The   right    is  simply   to 

for,   indispensably  necessary   witnesses;    but  have   the   attesting    witnesses  examined,    no 

the  testimony,  even  as  to  the  factum  of  the  matter    what    their    testimony    may    be." 

execution,    is    not   confined    to    them.      The  Compare    the    authorities  cited   in    \V.,   § 

fact  to  be  established  is   the  proper  execu-  1302. 

tion    of    the    will.      If    that    is    proved    by  3 — Eldon,    L.    C,   in   Bootle   v.   Blundell, 

competent    testimony,    it    is    sufficient,    no  19    Ves.    494,    30°.    S05>    S09    (1815):    "The 

matter    from    what    quarter    the    testimony  rule  of  this   Court   [of  chancery]   requiring 

comes,  provided  the  attesting  witnesses  are  that    to    establish    a   will    of   real    estate    all 

among   those   who   bear   testimony,    or    their  the    three    witnesses    shall    be    examined    is 

absence    is    explained.      The    inquiry,    as    in  not    by   any    means,    as    it    has    been    repre- 

other    cases,     is     whether,     taking    all     the  scnted,   a    technical    rule." 

testimony   together,   the    fact   is  duly  estab-  Compare    the   authorities   cited   in    W.,   S 

lished.      It    is    not    required    that    any    one  1304. 


250 


PREFERENTIAL   RULES. 


No.  265. 


265 


ADAM  V.  KERR  (1798). 
I  B.  &  P.  360. 

Debt  on  a  bond  made  in  Jamaica.  One  of  the  attesting  witnesses 
having  been  proved  to  be  dead,  and  the  other  to  be  resident  in  Jamaica, 
the  handwriting  of  the  former  only  was  established,  and  no  evi- 
dence was  given  of  the  handwriting  of  the  obligor;  verdict  for 
the -plaintiff,  subject  to  the  opinion  of  the  Court. 

BuLLER,  J.:  "I  am  clear  there  is  nothing  in  the  first  point.  Where 
a  witness  is  dead,  the  course  is  to  prove  his  handwriting.  In  this  case 
one  of  the  attesting  witnesses  was  dead,  and  the  other  was  beyond  the 
reach  of  the  process  of  the  Court;  the  best  evidence,  therefore,  which 
could  be  obtained  was  given.*  The  handwriting  of  the  obligor  need  not 
be  proved :  that  of  the  attesting  witness,  when  proved,  is  evidence  of 
everything  on  the  face  of  the  paper;  which  imports  to  be  sealed  by  the 
party."° 


GELOTT  V.  GOODSPEED  (1851). 

8  Cush.  411. 

Trespass  to  try  title.     Dewey,  J.:     "The  party  here  introduced  evi- 
dence tending  to  show  that  both  the  witnesses,  at  the  time  of  attesting 
the  execution  of  the  deed,  resided  in  the  State  of  Vermont,  and, 
^"        as  the  report  states,   proved  the  fact  to  the  satisfaction  of  the 
presiding  judge,  and  that  Charles  Scott,  one  of  them,  still  continued  to 


4 — Woods,  J.,  in  Dunbar  v.  Madden,  13 
N.  H.  311,  314  (1842):  "It  is  believed 
to  be  the  well-established  general  rule  of 
law  on  this  subject,  that  proof  of  the 
handwriting  of  the  witness  may  be  given 
in  all  cases  when  from  physical  or  legal 
causes  it  is  not  in  the  power  of  the  party 
to   produce   the   witness   at   the   trial." 

Compare  the  authorities  cited  in  W.,  §§ 
1310-1317. 

5 — Nelson,  C.  J.,  in  Losee  v.  Losee,  2 
John.  609  (1842):  "Proof  of  the  signature 
of  a  deceased  subscribing  witness  is  pre- 
sumptive evidence  of  everything  appear- 
ing upon  the  face  of  the  instrument  rela- 
tive to  its  execution;  as  it  is  presumed  the 
witness  would  not  have  subscribed  his  name 
in  attestation  of  that  which  did  not  take 
place.  .  .  .  The  attestation  comes  in  by 
way  of  substitute  for  his  oath." 

Bayley,  B.,  in  Whitelocke  v.  Musgrove, 
I  Cr.  &  M.  520  (1833):  "I  always  felt 
this  difficulty,  that  that  proof  alone  [of 
the  subscribing  witness'  handwriting]  does 
not  connect  the  defendant  with  the  note. 
.  .  .  What  is  the  effect  which,  with  the 
greatest    degree    of    latitude    can    be    given 


to  the  attestation  of  the  subscribing  wit- 
ness? It  is  that  the  facts  which  he  has 
attested  are  true.  Suppose  an  attestation 
of  an  instrument  which  describes  the  per- 
son executing  it  as  A.  B.  of  C.  in  the 
county  of  York.  Then  the  utmost  effect 
you  can  give  to  the  attestation  is  to  con- 
sider it  as  establishing  that  A.  B.  of  C.  in 
the  county  of  York  executed  the  instru- 
ment. But  you  must  go  a  step  further 
and  show  that  the  defendant  is  A.  B.  of 
C.  in  the  county  of  York,  or  in  some 
manner  establish  that  he  is  the  person  by 
whom  the  note  appears  to  be  executed. 
Now  what  does  the  subscribing  witness  in 
this  particular  case  attest?  Why,  that  this 
instrument  was  duly  executed  by  a  person 
of  the  name  of  Francis  Musgrove.  There 
may  be  many  persons  of  that  name,  and  if 
you  do  not  show  that  the  defendant  is  the 
Francis  Musgrove  who  executed  the  in- 
strument, you  fail  in  making  out  an  es- 
sential part  of  what  you  are  bound  to 
prove.  It  is  not  sufficient  for  the  sub- 
scribing witness  merely  to  prove  that  he 
saw  the  instrument  executed.  .  .  .  Why? 
Because   it   is    an    essential    part   of   the   is- 


No.  267.  ATTESTING  WITNESS.  251 

reside  there;  and,  as  to  the  other  witness,  Charles  Goss,  it  is  stated 
there  was  no  further  evidence ;  whereupon  the  plaintiff,  having  been 
allowed  to  prove  the  handwriting  of  said  Charles  Goss,  further  offered 
to  prove  the  handwriting  of  Harvey  Stone,  the  grantor  in  the  deed; 
but  the  court  rejected  this  evidence,  and  ruled  that  the  deed  could  not 
be  read  to  the  jury.  .  .  . 

"We  assume,  therefore,  that  the  case  was  one  properly  requiring 
the  admission  of  secondary  evidence.  Such  being  the  case,  the  only 
further  inquiry  is,  what  amount  of  secondary  evidence  is  required?  Is 
it  proof  of  the  handwriting  of  all  the  subscribing  witnesses,  if  there 
be  more  than  one  ?  If  the  witnesses  were  within  the  Commonwealth, 
proof  of  the  execution  by  one  of  them  would  entitle  the  party  to  read 
his  deed  to  the  jury,  and  the  like  rule  applies  as  to  the  handwriting 
where  both  are  shown  to  be  out  of  the  jurisdiction  of  the  court.  In 
ordinary  cases,  where  the  mere  formal  execution  is  the  subject  of  in- 
quiry, it  is  quite  sufficient  to  produce  one  of  several  subscribing  wit- 
nesses; and  if  the  secondary  evidence  is  admissible,  it  is  sufficient  to 
prove  the  handwriting  of  one  of  the  attesting  witnesses,  it  being  always 
necessary,  if  there  be  more  than  one  attesting  witness,  that  the  absence 
of  them  all  should  be  satisfactorily  accounted  for,  in  order  to  let  in  the 
secondary  evidence."® 


NEWSOM  v.  LUSTER  (1851). 
IS  III.  I7S' 

Trespass  to  try  title.  Trumbull,  J.:  "The  next  point  in  the  case 
relates  to  the  proof  of  the  execution  of  the  deed  from  Bogue  to  Mc- 
Candless  and  Emerson.  This  deed  was  not  acknowledged,  but 
*'  '  was  admitted  in  evidence  upon  proof  of  the  handwriting  of  the 
grantor,  the  absence  of  the  subscribing  witness  being  first  accounted 
for,  and  some  evidence  introduced  tending  to  show  that  his  handwrit- 
ing could  not  be  proved.  The  evidence  sufficiently  showed  that  the 
subscribing  witness  to  the  execution  of  the  deed  was  not  within  the 
reach  of  the  process  of  the  Court;  and  in  such  case,  this  Court  has 
expressly  decided  that  it  is  unnecessary  to  produce  the  subscribing  wit- 
ness at  the  trial :    Wiley  v.  Bean,  i   Gilm.  305. 

"It  is,  however,  objected  that,  in  the  absence  of  the  subscribing  wit- 
ness, the  next  best  evidence  is  proof  of  his  handwriting,  and  that  it 
was  improper  to  admit  the  deed  in  evidence  upon  proof  of  the  handwrit- 
ing of  the  grantor  alone.  ...  I  have  no  hesitation  in  holding  that 
proof  of  the  handwriting  of  the  grantor  to  a  deed  furnishes  altogether 

sue,    which    you    are   bound   to    prove,    that        fendant  with  the  party  who  has  signed  the 
the    instrument    was    executed    by    the    de-        instrument." 

fendant     in     the     suit.       It     seems     to     me,  Compare    the    authorities    cited    in    W.,    § 

therefore,   on   principle,  that   you   must  give        isis. 

some   evidence    of   the    identity   of   the    de-  6 — Compare   the   authorities  cited   in   W., 

§    1306. 


252  PREFERENTIAL   RULES.  No,  267. 

more  satisfactory  evidence  of  its  execution  than  would  proof  of  the 
handwriting  of  the  subscribing  witness.  When  the  attesting  witness 
cannot  be  had,  the  law  requires  the  next  best  evidence,  which  means 
the  next  best  evidence  of  those  facts  to  which  the  attesting  witness,  if 
present,  would  be  called  upon  to  testify ;  that  is,  not  merely  that  he 
signed  the  paper  as  a  witness,  but  that  the  party  executed  the  instru- 
ment. It  is  difficult  to  account  for  the  signature  of  a  party  to  a  writ- 
ing which  he  did  not  execute ;  but  it  is  easy  to  imagine  how  a  forged  in- 
strument might  be  established  against  him,  when  it  is  only  necessary 
to  procure  the  name  of  a  person  as  a  subscribing  witness  to  such  an 
instrument,  and  then  establish  it  by  proof  of  the  handwriting  of  the 
witness.  As  a  general  rule,  therefore,  whenever  the  subscribing  wit- 
nesses to  an  instrument  are  beyond  the  jurisdiction  of  the  court,  its 
execution  may  be  proved  by  proof  of  the  handwriting  of  the  grantor 
or   obligor. 

"This  rule  does  not  of  course  apply  to  instruments  which  the  law 
requires  to  be  attested  by  witnesses.  In  such  cases  evidence  of  the 
handwriting  of  both  party  and  witness  would  be  requisite."^ 


Statute:  California:  C.  C.  P.  1872,  §  1308:  In  uncontested  wills, 
"the  testimony  of  one  of  the  subscribing  witnesses"  suffices.  lb.  §  1315: 
in  contested  wills,  "all  the  subscribing  witnesses  who  are  pres- 
^^^  ent  in  the  county  and  who  are  of  sound  mind  must  be  produced 
and  examined,  and  the  death,  absence,  or  insanity  of  any  of  them  must 
be  satisfactorily  shown  to  the  Court;  if  none  of  the  subscribing  wit- 
nesses reside  in  the  county  at  the  time  appointed  for  proving  the  will, 
the  Court  may  admit  the  testimony  of  other  witnesses  to  prove  the 
sanity  of  the  testator  and  the  execution  of  the  will ;  and,  as  evidence 
of  such  execution  it  may  admit  proof  of  the  handwriting  of  the  testator 
and  of  the  subscribing  witnesses  or  any  of  them."^ 


(B)     SUNDRY  TESTIMONIAL  PREFERENCES. 

UNITED  STATES  v.  GIBERT  (1834). 
2  Sumner  ip,  81. 

Indictment   against   the   officers   and   crew   of   the   ship   Panda,    for 
piracy   committed   on   the   brig   Mexican.     The   brig   Mexican  belonged 
to   Salem,   and  was   owned   by  Joseph   Peabody.     It   sailed   from 
^  Salem  for  Rio  Janeiro  on  the  29th  August,  1832,  under  the  com- 

mand of  Captain  Butman ;  having  on  board  a  valuable  cargo,  and  twenty 
thousand  dollars  in  specie.  On  the  20th  September,  in  33°  N.  lat. 
and  34°   30'  W.  Lon.,  she  fell  in  with  a  suspicious-looking  vessel,  from 

7 — Compare  the   authorities   cited    in    W.,  illustrate    the    terms    hv    which,     in    almost 

§    1320.  every    jurisdiction,    many    of   the    preceding 

8 — This    particular    statute    has    been    su-  applications     of     the     principle     have     been 

perseded   by  amendments;    but  it  serves  to  affected  in  statutes  concerning  wills. 


No.  269.  SUNDRY   INSTANCES.  253 

which  she  made  many  efforts,  but  unsuccessfully,  to  escape.  .  .  .  Infor- 
mation of  what  had  taken  place  was  immediately  disseminated  through- 
out this  and  other  countries,  and  reached  the  coast  of  Africa,  where  Cap- 
tain Trotter,  commanding  the  British  brig  of  war  Curlew,  was  then  cruis- 
ing. Circumstances  led  that  gentleman  to  believe  that  the  schooner 
Panda,  then  lying  in  the  river  Nazareth,  was  the  vessel  which  had  cap- 
tured the  Mexican.  He  immediately,  therefore,  proceeded  to  take  meas- 
ures against  her.  These  measures  resulted  in  the  capture  of  the  Panda,  • 
but  the  escape,  for  the  time,  of  her  crew.  No  ship's  papers  or  log-book 
were  found  on  board  of  her,  although  diligently  sought  for ;  and,  owing 
to  some  accident,  she  shortly  afterwards  blew  up,  thereby  killing  sev- 
eral of  the  Curlew's  men.  Captain  Trotter  then  sailed  to  other  ports, 
still  making  efforts  to  discover  the  crew  of  the  Panda,  and  at  last  suc- 
ceeded in  arresting  the  prisoners,  and  carried  them  into  Portsmouth, 
England.  By  the  British  government,  they  were  sent  to  this  country 
for  trial,  the  offence  of  which  they  were  charged  having  been  commit- 
ted on  board  a  vessel  of  the  United  States. 

Story,  J. :  "The  next  and  last  specification  under  this  head  is  that 
the  Court  declined  to  instruct  the  jury  that  the  failure  of  the  govern- 
ment to  produce  the  witness,  who  (it  was  testified)  saw  the  match  ap- 
plied for  the  purpose  of  blowing  up  the  Panda,  and  removed  it,  afforded 
a  legal  presumption  against  the  truth  of  the  alleged  attempt  by  the  pris- 
oner Ruiz  to  destroy  the  Panda.  .  .  .  The  argument  now  is,  that  although 
Mr.  Quentin,  who  was  upon  the  stand,  stated  that  he  was  on  board  at 
the  same  time  with  the  witness,  that  he  saw  the  smoke  coming  from  the 
cabin,  and  the  absent  witness  go  down,  and  bring  up  the  match,  and  many 
other  circumstances  to  establish  an  intention  to  set  the  Panda  on  fire  and 
blow  her  up ;  yet  that  his  testimony  was  not  the  best  evidence  on  this 
point,  and  ought  to  be  rejected.  .  .  It  appears  to  me  that  the  whole  basis 
of  the  argument  is  founded  upon  a  mistake  of  the  meaning  of  the  rule  of 
law  as  to  the  production  of  the  best  evidence.  The  rule  is  not  applied  to 
evidence  of  the  same  nature  and  degree;  but  it  is  applied  to  reject  second- 
ary and  inferior  evidence  in  proof  of  a  fact  which  leaves  evidence  of  a 
higher  and  superior  nature  behind  in  the  possession  or  power  of  the 
party.  Thus,  if  the  party  offers  a  copy  of  a  paper  in  evidence,  when 
he  has  the  original  in  his  possession,  the  copy  will  be  rejected,  for  the 
original  is  evidence  of  a  higher  nature.  .  .  .  But  the  rule  does  not 
apply  to  several  eye-witnesses  testifying  to  the  same  facts  or  parts  of 
the  same  facts,  for  the  testimony  is  all  in  the  same  degree,  and  where 
there  are  several  witnesses  to  the  same  facts,  they  may  be  proved  by 
one  only.  All  need  not  be  produced.  If  they  are  not  produced,  the 
evidence  may  be  less  satisfactory  or  less  conclusive,  but  still  it  is  not 
incompetent."" 

Q — Campbell,  J.,  in  Elliott  v.   Van  Burcn,  the  law  has  divided  testimony  into  primary 

33    Mich.    49,    52    (1875),    repudiating    any  and    secondary;    and    there    are   no    degrees 

preference    for    a    physician's    testimony    to  of   evidence,   except    where   some    document 

an    injured    person's   condition:    "The    term  or   other    instrument   exists   the   contents   of 

'best    evidence'    is   confined    to    cases    where  which     should    be     proved    by    an    original 


254  PREFERENTIAL   RULES.  No.  270. 

JEANS  V.  WHEEDON  (1844). 
2  Moo.  &  Rob.  486. 

Case  for  a  malicious  prosecution.  The  defendant  had  made  a 
charge  against  the  plaintiff  before  a  magistrate,  the  hearing  of  which 
was,  in  the  first  instance,  adjourned,  and  on  a  subsequent  occa- 
'"  sion  the  case  was  heard,  and  the  depositions  were  gone  through, 
taken  down,  and  the  plaintiff  committed  for  trial.  A  magistrate's  clerk 
attended  on  the  first  occasion  and  took  down  what  the  defendant  said, 
but  the  defendant  did  not  sign  it,  nor  did  the  magistrate.  Bompas  Serjt. 
objected  that  parol  evidence  was  inadmissible  of  what  the  defendant 
said  on  the  first  occasion,  and  that  the  writing  must  be  produced. 

Cresswell,  J. :  "I  know  from  the  depositions  returned  to  me  at 
the  assizes,  that,  in  practice  when  a  case  is  adjourned,  the  depositions 
are  not  regularly  reduced  to  writing  under  the  statute ;  and  I  think 
that  parol  evidence  is  admissible  here  of  what  was  said  on  the  first 
occasion.  If  two  persons  are  present  on  the  examination  of  a  witness, 
and  one  takes  a  note  of  what  the  witness  says,  and  the  other  does  not, 
the  latter  is  as  competent  as  the  former  to  prove;  what  he  heard."  Ver- 
dict for  the  plaintiff. 

Note  by  the  Reporters:  "The  fact  of  a  conversation  or  transac- 
tion being  reduced  into  writing,  furnishes  no  general  principle  for  ex- 
cluding other  evidence  of  the  conversation  or  transaction  than  the  writ- 
ing. Such  evidence  is  by  no  means  necessarily  secondary  to  the  writ- 
ing. Judges  take  notes  of  the  evidence  given  on  trials,  yet  the  evidence 
may  be  proved  from  recollection,  even  on  an  indictment  for  perjury. 
.  .  .  The  exclusion  must  be  founded  either  on  the  agreement  of  par- 
ties, or  on  the  requirements  of  some  particular  law.  When  parties  re- 
duce into  writing  the  terms  of  an  agreement,  or  account  of  any  other 
transaction,  as  between  themselves  such  writing  must  be  produced,  and 
in  the  case  of  an  agreement,  cannot  be  contradicted,  or  even  added  to 
by  parol  evidence ;  for  it  is  a  reasonable  presumption  that,  though  other 
things  were  said  or  done  besides  those  recorded  in  the  writing,  the 
parties  concurred  in  treating  those  other  things  as  not  essential  parts 
of  the  agreement  or  transaction.  But  this  reasoning  does  not  apply  to 
third  parties.  There  may  well  be  occasions,  either  civil  or  criminal, 
in  which  others  may  have  an  interest  in  proving  what  really  passed, 
and  there  is  no  reason  why  they  should  not  be  permitted  to  prove  it, 

rather    than    by    other    testimony    which    is  one  can   be  allowed  to  prove  what  he  has 

open    to    the    danger    of    inaccuracy.       But  never    learned,    whether    it    be    ordinary    or 

where   living   witnesses   are    placed   on    the  scientific    facts.      But    one   who   can    testify 

stand,    one   is  in   law   on   the  same   footing  under  any  circumstances  upon  the  facts  on 

as  another.     If  he  can  testify  at  all,  he  can  which    he    is    examined   may    do    so   as    well 

testify    in    the    presence    as    well    as    in    the  where    his    superiors    are    to    be    found    as 

absence    of    those    who     may    be    supposed  where   he   knows   as    much    as   any   other." 

wiser    or    more    reliable.      There    are    some  Compare    the    authorities   cited    in    W.,    §§ 

questions   on    which    some   witnesses   cannot  1286,   1339;   and  the   "best  evidence"  phrase 

testify  at  all,   for  want  of  knowledge.     No  ante,    No.    163.      Compare    No.    191,    ante. 


No.  270.  SUNDRY   INSTANCES.  255 

from  the  memory  of  witnesses,  without  producing  the  writing.  Where 
matters  are  required  to  be  reduced  into  writing  by  statute,  either  for 
the  purpose  of  giving  validity  to  the  transaction,  or  for  the  purpose  of 
evidence,  the  writing  may  be  considered  the  primary  evidence,  and 
must  be  produced.  But  questions  may,  even  in  these  cases,  arise,  as  to 
the  extent  to  which  other  evidence  is  to  be  excluded;  in  the  determina- 
tion of  which,  the  necessity  of  the  case  in  some  instances,  the  purposes 
of  the  enactment  in  others,  must  be  looked  to.  Thus,  judicial  records 
are  not  only  primary,  but  from  their  nature  conclusive,  evidence  of  the 
decisions  of  courts  of  justice.  The  Statute  of  Frauds  requires  certain 
agreements,  etc.,  to  be  in  writing,  to  give  them  validity;  and  it  may 
be  laid  down  as  a  general  rule,  that  in  cases  falling  within  that  statute, 
the  agreement  cannot  be  added  to,  explained,  or  contradicted  by  parol. 
The  statutes  i  &  2  Ph.  &  M.  and  7  Geo.  4.  c.  64,  require  the  examina- 
tions of  witnesses  and  prisoners  to  be  reduced  into  writing,  and  parol 
evidence  of  what  either  of  them  said  when  under  examination,  cannot 
be  received  in  the  first  instance  on  the  criminal  trial,  preliminary  to 
which  the  examination  was  taken.  But  even  on  such  criminal  trial, 
evidence  is  admissible  by  way  of  explanation,  or  to  prove  that  the 
party  made  other  statements  besides  those  reduced  into  writing;  other- 
wise, the  safety  of  prisoners,  and  the  credit  of  witnesses,  v/ould  depend 
on  the  honesty  and  accuracy  of  the  clerks  who  take  the  examinations ; 
and  instances  (not  occurring  on  such  criminal  trial)  may  perhaps 
arise,  in  which,  what  a  witness  said  before  a  magistrate,  might  be  given 
in  evidence  against  him  without  even  producing  the  written  examina- 
tion ;  at  all  events,  it  may  be  added  to  or  explained,  and  that  even  by 
shewing  other  things  said,  pertinent  to,  and  part  of,  the  matters  for 
which  the  examination  was  taken.  ...  In  the  principal  case  it 
was  not,  perhaps,  necessary  that  the  statements,  parol  evidence  of 
which  was  objected  to  (viz.,  statements  made  by  the  defendant  on  the 
first  occasion  of  his  going  before  the  magistrate),  should  have  been 
reduced  to  writing  at  all ;  but  even  if  the  entire  examination  of  the 
witnesses,  and  the  committal  of  a  prisoner,  take  place  at  the  same 
time,  it  would  seem  most  inconvenient  as  well  as  unreasonable  to  make 
the  written  examination  conclusive,  as  to  all  the  preliminary  statements 
of  the  witnesses  on  which  it  is  founded.  In  practice,  the  witnesses 
are  allowed  to  tell  their  stories  in  their  own  way,  and  what  the  magis- 
trates or  their  clerks  consider  to  be  the  efifect,  is  written  down  and 
then  read  over  (it  is  true)  to  the  examinant ;  but  it  is  scarcely  to  be 
expected  that  he  should  be  very  exact  in  observing  inaccuracies."^" 

^      10 — Compare  the  authorities  cited  in  W.,§§   1326-1329,   1349. 


256  BOOK  I,  PART  II.  No.  271. 


TITLE   III. 

ANALYTIC  (OR,  SCRUTINATIVE)  RULES.^ 

THE  HEARSAY  RULE. 

^Nature  of  These  Rules.  'The  nature  of  the  Analytic  (or  Scru- 
tinative)  rules  is  to  subject  a  certain  kind  of  evidence  to  tests  calcu- 
lated to  exhibit  and  expose  its  possible  weaknesses  and  to  make 
^'^  clear  to  the  tribunal  the  precise  value  that  it  deserves.  There 
is  in  effect  but  one  rule  of  this  sort,  the  Hearsay  rule.  By  this  rule, 
twfo  such  tests  or  secvirities  for  trustworthiness  are  required  to  be  ap- 
plied to  testimonial  evidence, — the  tests  of  cross-examination  and  con- 
frontation; but  the  second  is  entirely  subsidiary  to  the  first,  so  that  the 
essential  purpose  of  this  rule  is  that  which  is  attained  by  bringing  the 
witness  to  the  stand  and  analyzing  his  assertions  by  the  potent  resolvent 
of  cross-examination.  The  chief  questions  that  arise  in  connection  with 
this  rule  are  whether  the  rule  has  in  a  given  case  been  satisfied  by 
adequate  opportunity  for  cross-examination,  whether  certain  classes  of 
testimonial  assertions  are  to  be  received  exceptionally  without  under- 
going these  tests,  and  where  the  line  is  to  be  drawn  between  utterances 
to  which  the  rule  does  and  does  not  apply." 


^Nature  of  Hearsay,  as  an  Extra-Judicial  Testimonial  Asser- 
tion. "When  a  witness  A  on  the  stand  testifies,  'B  told  me  that  event 
X  occurred,'  his  testimony  may  be  regarded  in  two  ways:  (i) 
^*  He  may  be  regarded  as  asserting  the  event  X  upon  his  own  credit, 
i.  e.  as  a  fact  to  be  believed  because  he  asserts  that  he  knows  it.  But 
when  it  thus  appears  that  his  assertion  is  not  based  on  personal  observa- 
tion of  event  X,  his  testimony  to  that  event  is  rejected,  because  he  is 
not  qualified  by  proper  sources  of  knowledge  to  speak  to  it.  This  in- 
volves a  general  principle  of  Testimonial  knowledge,  already  examined,* 
and  does  not  involve  the  Hearsay  rule  proper. 

"(2)  But  suppose,  in  order  to  obviate  that  objection,  that  we  regard 
A  as  not  making  any  assertion  about  event  X  (of  which  he  has  no 
personal  knowledge),  but  as  testifying  to  the  utterance  in  his  hearing 
of  B's  statement  as  to  event  X.     To  this.  A  is  clearly  qualified  to  tes- 

I — For  a  summary  of  the  five  Titles  of  3 — Quoted  from  W.,  §   1361. 

Auxiliary   Rules,   see   ante,    No.    162.  4 — Ante,    Nos.    78-81. 

2 — Quoted  from  W.,   §   11 72. 


No.  273.  HEARSAY   RULE.  257 

tify,  so  that  no  objection  can  arise  on  that  score.  The  only  question, 
then,  can  be  whether  this  assertion  of  B,  reported  by  A,  is  admissible 
as  evidence  of  the  event  X,  asserted  by  B  to  have  occurred.  It  is  clear 
that  what  we  are  now  attempting  to  do  is  to  prove  event  X  by  B's 
assertion;  the  utterance  of  B's  assertion  being  itself  proved  by  A's  tes- 
timony to  it.  In  other  words,  merely  the  making  of  B's  assertion  is 
properly  proved  by  A;  but  the  occurrence  of  event  X  is  also  sought  to 
be  proved,  by  this  assertion  of  B,  which  was  uttered  out  of  court,  but  is 
offered  testimonially  for  the  same  purpose  as  if  it  were  being  made 
presently  by  B  on  the  stand.^  It  is  these  extra-judicial  testimonial 
assertions  which  the  Hearsay  rule  prohibits.  The  Hearsay  rule  points 
out  that  B's  assertion,  offered  testimonially,  is  not  made  on  the  stand 
and  presently,  but  out  of  court  anteriorly,  and  challenges  it  upon  that 
ground.  The  Hearsay  rule  tells  us  that  B's  assertion  (even  assumitig 
B  to  have  been  qualified,  by  knowledge  and  otherwise,  as  witness) 
cannot  be  accepted  because  it  has  not  been  made  at  a  time  and  place 
where  it  could  be  subjected  to  certain  essential  tests  or  investigations 
calculated  to  demonstrate  its  real  value  by  exposing  such  latent  sources 
of  error.  The  Hearsay  rule  predicates  a  contrast  between  assertions 
untested  and  assertions  tested;  it  insists  upon  having  the  latter." 


CRAIG  dem.  ANNESLEY  v.  EARL  OF  ANGLESEA  (1743). 

J/  How.  St.   Tr.   1 160. 

The  legitimacy  of  the  plaintiff  as  heir  was  in  issue;  the  declara- 
tions of  Mrs.  Piggot,  a  deceased  intimate  friend  of  his  alleged  mother, 
were  offered.     "This  was  objected  to  by  defendant's  counsel,  who 
"■  insisted  that  hearsay  was  not  evidence;  .  .  .  that  Mrs.  Piggot  is 

dead,  and  where  persons  are  dead,  the  law  hath  not  provided  for  their 
testimony,  nor  will  it  substitute  a  mere  declaration  in  the  place  of  an 
oath ;  .  .  .  that  the  admitting  hearsay  evidence  in  the  present  affair 
would  introduce  a  dangerous  precedent,  in  regard  the  other  side  could 
not  have  the  benefit  of  cross-examining;  in  some  cases,  it  is  true, 
hearsay  evidence  is  admitted  from  the  necessity  of  the  thing  .  .  .  that 
in  civil  cases  there  is  not  the  same  necessity,  because  a  bill  in  equity 
may  be  filed  to  perpetuate  the  testimony  of  ancient  witnesses,  and  then 
the  evidence  may  be  cross-examined ;  but  Mrs.  Piggot  being  dead,  no 
declaration  of  hers  can  be  evidence,  because  the  defendant  has  no  oppor- 
tunity to  cross-examine  her.  .  .  .  The  Court  would  not  admit  the  hear- 
say of  Mrs.  Piggot's  declaration  to  deponent  to  be  made  use  of  as  evi- 
dence, on  the  principal  reason  that  hearsay  evidence  ought  not  to  be 

5 — Chief  Justice  Afpteton,   Evidence,  174  dividual    testifying    is    merely    the    conduit 

(i860):       "In     all     cases     of     hearsay     the  or     pipe     through     whose     agency     the     im- 

effcctive  witness   is  the  individual,   whether  pressions    of    some    one    else    are    conveyed 

party    or    not,    whose    supposed    statements  to  the   Court.     The  real  proof  is  the  hear- 

the     narrating     witness     relates.       The    in-  say    statement." 


258  HEARSAY  RULE.  No.  273. 

admitted,  because  of  the  adverse  party's  having  no  opportunity  of  cross- 
examining."^ 


COLEMAN  V.  SOUTH  WICK   (1812). 

p  Johns.  45,  50. 

Libel  published  in  "The  Albany  Register."  Kent,  C.  J.:  "The 
next  point  is,  that  the  testimony  of  Samuel  North  ought  to  have  been 
received,  w^hen  he  offered  to  prove  that  he  heard  the  defendant 
^'*  ask  one  Henry  Stanley,  who  resided  in  New^  York,  whether  he 
recollected  the  extract,  as  published  in  the  Public  Advertiser,  appearing 
in  the  plaintiff's  paper,  to  which  Stanley  replied,  that  he  did.  This 
point  appears  to  me  to  be  as  untenable  as  the  other.  .  .  .  The  estab- 
lished doctrine  is,  that  you  must  go,  if  you  can,  to  the  source  of  testi- 
mony, and  not  introduce  a  copy,  when  the  original  is  to  be  had,  nor 
undertake  to  prove  what  another  person  has  been  heard  to  say,  when 
that  person  is  a  good  witness,  and  can  be  produced.  .  .  .Why  not  pro- 
duce Stanley  to  testify  what  he  told  the  defendant,  instead  of  resorting 
to  a  bystander  who  heard  what  he  said?  .  .  .  Hearsay  testimony  is 
from  the  very  nature  of  it  attended  with  all  such  doubts  and  diflficulties, 
and  it  cannot  clear  them  up.  'A  person  who  relates  a  hearsay  is  not 
obliged  to  enter  into  any  particulars,  to  answer  any  questions,  to  solve 
any  difficulties,  to  reconcile  any  contradictions,  to  explain  any  obscuri- 
ties, to  remove  any  ambiguities;  he  entrenches  himself  in  the  simple 
assertion  that  he  was  told  so,  and  leaves  the  burden  entirely  on  his  dead 
or  absent  author.'  .  .  .  The  plaintiff  by  means  of  this  species  of  evi- 
dence would  be  taken  by  surprise  and  be  precluded  from  the  benefit  of 
a  cross-examination  of  Stanley,  as  to  all  those  material  points  which 
have  been  suggested  as  necessary  to  throw  full  light  on  his  informa- 
tion." 


Sir  Matthew  Hale,  L.  C.  J.,  History  of  the  Common  Law,  c.  12 
(dnte  1680)  :  "The  excellency  [in  English  law]  of  this  open  course  of 
evidence  to  the  jury  in  presence  of  the  judge,  jury,  parties,  and 
"*^  council,  and  even  of  the  adverse  witnesses,  appears  in  these  par- 
ticulars :  .  .  .  3dly,  That  by  this  course  of  personal  and  open  examina- 
tion, there  is  opportunity  for  all  persons  concerned,  viz.,  the  judge,  or 
any  of  the  jury,  or  parties,  or  their  council  or  attornies,  to  propound 
occasional  questions,  which  beats  and  boults  out  the  truth  much  better 
than  when  the  witness  only  delivers  a  formal  series  of  his  knowledge 
without  being  interrogated." 

6 — For     the     history     of     the     Hearsay    rule,    see    W.,    §     1364. 


No.  277.  INTRODUCTORY.  259 

Jeremy  Bentham,  Rationale  of  Judicial  Evidence,  b.  II,  c.  IX,  and 
h.  Ill,  c.  XX  (1827)  :  '"In  the  character  of  a  security  for  the  correct- 
ness and  completeness  of  testimony,  so  obvious  is  the  utiUty  and 
importance  of  the  faculty  and  practice  of  interrogation  that  the 
mention  of  it  in  this  view  might  well  be  deemed  superfluous.  ...  By 
interrogations  thus  pointed,  such  a  security  for  completeness  is  afforded 
as  can  never  be  afforded  by  any  general  engagement  which  can  be  in- 
cluded in  the  terms  of  an  oath  or  other  formulary.  ...  By  interroga- 
tion, and  not  without,  is  the  improbity  of  a  deponent  driven  out  of  all  its 
holds.  .  .  .  The  best  possible  mode  of  extracting  testimony — the  mode 
which  a  considerate  master  of  a  family  would  employ  when  sitting  in 
judgment  on  the  conduct  of  a  servant  or  a  child — in  a  word,  the  mode 
by  oral  interrogation  and  counter-interrogation,  is  a  production  of  Eng- 
lish growth.  Among  those  who  in  its  native  country  are  so  cordial  in 
their  admiration  of  this  mode  of  trial  [by  jury],  there  are  not  twenty 
perhaps  who  at  this  moment  are  aware  that,  in  contradistinction  to 
Roman  jurisprudence,  the  mode  of  extracting  evidence  on  this  occasion 
is  as  peculiar  to  English  procedure  as  the  constitution  of  the  Court. 
The  peculiarity  of  the  practice  called  in  England  'cross-examination,' 
the  complete  absence  of  it  in  every  system  of  procedure  grounded  upon 
the  Roman  (with  the  single  exception  of  the  partial  and  narrow  use 
made  of  it  in  the  case  of  confrontation),  is  a  fact  unnoticed  till  now 
in  any  book,  but  which  will  be  as  conclusively,  as  concisely  ascertained 
at  any  time  by  the  impossibility  of  finding  a  word  to  render  it  by  in  any 
other  language.  ...  No  political  institution  was  ever  kept  more  com- 
pletely hidden  from  general  observation.  All  mouths  are  open  in  praise 
of  trial  by  jury;  and  this  is  the  mode  of  extraction  employed  on  a  trial 
by  jury.  It  has  been  observed  that  somehow  or  other  the  ends  of  jus- 
tice were  more  effectually  accomplished  in  that  sort  of  court  of  which 
the  tribunal  called  a  jury  was  one  feature,  and  the  use  of  this  mode 
of  extracting  evidence  another;  but  to  which  of  them  the  effect  was 
principally  to  be  ascribed  is  a  question  that  seems  never  to  have  pre- 
sented itself.  The  feature  which  consists  in  the  composition  of  the 
Court  seems  to  have  engrossed  all  the  praise  of  it.  'Trial  by  jury! 
Ever  blessed  and  sacred  trial  by  jury!  Juries  for  ever!'  is  the  cry;  not 
'Trial  by  oral  and  cross-examined  evidence!'  It  is,  however,  to  this 
comparatively  neglected  feature  that  that  most  popular  of  all  judicial 
institutions  would  be  found  to  be  indebted  for  the  least  questionable  and 
most  extensively  efficient,  if  not  the  most  important  of  its  real  merits." 


David  Paul  Brown,  The  Foru)ii,_II,  456   (1856);   this  celebrated 

Pennsylvanian  advocate  is  describing  a  case  of  supposed  infanticide  by 

poison,  administered  bv  its  mother,  whose  seducer  had  deserted 
277 

her :     "It  was  shown  that  a  day  or  two  before  the  death  of  her 

infant,  the  mother  had  sent  for  half-an-ounce  of  arsenic  to  a  grocer's. 

That  after  the  death  the  arsenic  was  taken  to  the  grocer's,  and  was 


260 


HEARSAY  RULE. 


No.  277. 


weighed,  and  had  lost  twenty-four  grains  in  its  weight.  This  circum- 
stance, together  with  the  opinion  of  the  chemist,  presented  a  strong  case. 
Neither  was  sufificient  in  itself,  but  together  they  were  dangerous.  Of 
course,  the  cross-examination  as  to  the  weight  was  very  rigid  and 
severe.  Upon  this  particular  point  it  ran  thus:  'When  the  arsenic 
was  purchased,  how  did  you  weigh  it?'  'I  weighed  it  by  shot.'  'How 
many  shot?'  'Six.'  'Of  what  description?'  'No.  8.'  'When  it  was 
returned,  did  you  weigh  it  in  the  same  scales?'  'Yes.'  'Did  you  weigh 
it  with  the  same  shot?'  *I  w^eighed  it  with  shot  of  the  same  number — 
for  I  had  no  other  number.'  'How  much  less  did  it  weigh?'  'Twenty- 
four  grains  less.'  It  was  plain  that  this  testimony  bore  hard  upon  the 
prisoner — but  at  this  stage  of  the  case  the  court  adjourned.  Imme- 
diately my  colleague  (Mr.  Boyd)  and  myself  visited  the  stores  of  all 
the  grocers,  and  took  from  various  uncut  bags  of  No.  8,  the  requisite 
number  of  shot,  subjected  them  to  weight  in  the  most  accurate  scales, 
and  found  that  the  some  number  of  these  different  parcels  of  shot  varied 
more  in  weight  than  the  difference  referred  to  as  detected  in  the  arsenic 
at  the  time  of  its  return.  The  shot — the  grocers — the  apothecary — the 
scales — were  all  brought  before  the  Court.  They  clearly  established 
the  facts  stated,  and  enabled  us  fairly  to  contend  that  there  had  been 
no  portion  of  the  arsenic  used, — which  argument,  aided  by  the  excellent 
character  of  the  prisoner,  proved  entirely  successful,  and  after  a  pain- 
ful and  prolonged  trial,  she  was  acquitted;  so  that  her  life  may  be  said 
to  have  been  saved  by  a  shot." 


John  C.  Reed,  Conduct  of  a  Latvsnit,  ^400  (1885):  "When  your 
evidence  is  but  slight  and  that  of  the  other  side  is  very  strong,  you  may 
be  reckless  in  spurring  his  witnesses  to  make  a  complete  statement. 
"  *  ^  Your  case  is  so  bad  that  any  change  in  it  may  be  for  the  better.  We 
add  an  entertaining  and  apt  illustration.  Some  time  ago  the  writer  while 
w-aiting  in  court  watched  the  trial  of  a  case  where  the  plaintiff  sought 
to  recover  damages  for  a  breach  of  warranty.  The  defendant  had  sold 
him  a  horse  with  an  express  warranty  that  he  was  sound  and  kind  and 
free  from  all  'outs.'  The  next  day  the  plaintiff  noticed  that  a  shoe  was 
loose,  and  he  undertook  to  drive  him  to  a  blacksmith's  shop  to  have 
him  shod,  when  the  horse  exhibited  such  violent  reluctance  that  he  was 
obliged  to  abandon  the  attempt.  Repeated  efforts  made  it  evident  that 
he  never  would  be  shod  willingly,  and  therefore  he  was  obliged  to  sell 
him.  The  defendant  called  two  witnesses.  The  first,  an  honest,  clean- 
looking  man,  testified  that  he  was  a  blacksmith,  that  he  knew  the  horse 
in  question  perfectly  well,  and  he  had  shod  him  about  the  time  referred 
to  in  the  plaintift''s  testimony.  'Did  you  have  any  difficulty  in  shoeing 
him?'  asked  the  defendant's  counsel.  'Not  the  least.  He  stood  per- 
fectly quiet.  Never  had  a  horse  stand  quieter.'  The  other,  a  venerable- 
looking  man,  with  a  clear,  blue  eye,  testified  that  he  had  owned  the 
horse  and  that  he  was  perfectly  kind.     'Did  you  ever  have  any  trouble 


No.  279,  INTRODUCTORY.  261 

about  getting  him  into  a  blacksmith's  shop?'  'Well,  sir,  I  don't  remem- 
ber that  I  ever  had  occasion  to  carry  him  to  a  blacksmith's  shop  while 
I  owned  him.'  The  plaintiff's  counsel  evidently  thought  that  cross- 
examination  would  only  develop  this  unpleasant  testimony  more  strongly, 
so  he  let  the  witnesses  go.  The  jury  found  for  the  defendant.  The 
next  morning,  as  the  writer  was  sitting  in  court  waiting  for  a  verdict, 
a  man  behind  him,  whom  he  recognized  as  the  blacksmith,  leaned  for- 
ward and  said,  'You  heard  that  horse  case  tried  yesterday,  didn't  you? 
Well,  that  fellow  who  tried  the  case  for  the  plaintiff  didn't  know  how 
to  cross-examine  worth  a  cent.  I  told  him  that  the  horse  .stood  per- 
fectly quiet  while  I  shod  him;  and  so  he  did.  I  didn't  tell  him  that  I 
had  to  hold  him  by  the  nose  with  a  pair  of  pincers  to  make  him  stand. 
The  old  man  said  he  never  took  him  to  a  blacksmith's  shop  while  he 
had  him.  No  more  he  did.  He  had  to  take  him  out  into  an  open  lot  and 
cast  him  before  he  could  shoe  him.'  Of  course  the  plaintiff's  counsel 
should  have  been  more  searching  in  the  examination,  where  he  could 
not  possibly  have  made  his  own  case  worse."^ 


PARNELL   COMMISSION'S  PROCEEDINGS    (1888). 

5tk  day,  Times'  Rep.  pt.  14,  pp.  ip4,  ig§. 

This  was  virtually  an  action  by  Mr.  Parnell  and  others,  against  the 
London  Times,  for  defamation,  in  charging  among  other  things  that 
Mr.  Parnell  had  approved  the  Phoenix  Park  assassination;  this 
^'^  charge  was  based  on  alleged  letters  of  Mr.  Parnell,  plainly  admit- 
ting complicity,  sold  to  the  Times  by  one  Richard  Pigott,  an  Irish 
editor,  living  in  part  by  blackmail,  who  claimed  to  have  procured  them 
from  other  Irishmen.  Pigott  himself  turned  out  to  have  forged  them; 
but  the  case  for  their  authenticity  seemed  sound,  until  Pigott  was  placed 
on  the  stand   for  the   Times  and  came  under  the  cross-examination  of 

1 — "A  certain  ex-Governor  had  on  one  out  of  the  dirt;  but  I  didn't  see  the  de- 
occasion  a  client  who  was  indicted  for  fendant  hit  the  prosecutor,  and  I  didn't 
maiming,  the  specific  charge  being  that  see  him  kick  him,  and  I  didn't  see  him 
the  defendant  had  bitten  off  the  ear  of  the  bite  his  ear  off.'  'You  were  in  plain  view 
prosecutor.  The  case  came  on  for  trial  of  the  parties  and  you  say  you  did  not  see 
and  the  outcome  of  it  was  not  very  prom-  any  of  these  things?'  asked  the  ex-Govern- 
ising  for  the  defendant.  While  the  de-  or,  with  an  expanding  chest.  'Yes,'  said 
fence  was  still  being  adduced,  the  defend-  the  witness.  Then  the  prosecuting  attor- 
ant  leaned  over  and  whispered  in  the  ncy  took  a  hand,  and  cross-examined, 
ear  of  his  attorney,  saying,  'Call  Jack  '.\ow,  Mr.  Deans,'  said  he,  'you  have  told 
Deans;  he  was  there;  he  saw  the  whole  the  Governor  all  that  you  did  not  see  of 
thing.'  Thereupon  in  a  short  while  Jack  this  assault;  please  tell  me  what  you  did 
Deans  was  duly  called  and  put  upon  the  see  of  it.'  'Well,'  said  the  witness,  squirm- 
witness  stand  in  behalf  of  the  defendant.  ing  in  his  chair  and  hesitating  a  long  time 
'.\'ow,  Mr.  Deans,'  said  the  ex-Governor,  before  proceeding,  'it's  so;  I  didn't  see  the 
after  the  preliminary  questions,  'you  defendant  bite  off  the  prosecutor's  ear.  But 
say  that  you  know  the  defendant  and  that  jest  as  I  got  abreast  of  him  I  seen  him 
you  were  present  at  the  time  of  the  al-  spit  the  ear  out  of  his  mouth.'  That  was 
leged  assault  by  him  on  the  prosecutor.  enough  for  the  prosecution  and  a  great 
Tell  us  what  you  saw  of  that  occurrence.'  deal  more  than  enough  for  the  ex-Gov- 
'Well,  I  was  coming  'long  the  road,'  said  ernor"  (13  Green  Bag  423). 
the    witness,    'and    I    seen    'em    gitting    up 


262  HEARSAY  RULE.  No.  279. 

Sir  Charles  Russell.  The  object  of  the  ensuing  part  of  the  cross-exam- 
ination was  to  bring  out  Pigott's  shiftiness  in  first  selling  the  letters 
as  genuine  to  the  Times,  and  then  offering  to  the  Parnell  party  for 
money  to  enable  them  to  disprove  the  letters"  genuineness.  The  letters 
had  been  first  published  in  a  series  of  articles  in  the  Times  entitled 
"Parnellism  and  Crime,"  beginning  March  7,  1887,  and  bringing  tem- 
porary obloquy  to  the  Parnell  party  and  causing  the  passing  of  the 
Coercion  Act.  Dr.  Archibald  Walsh,  mentioned  in  the  examination, 
was  an  intimate  friend  of  Mr.  Parnell.  Pigott,  in  his  prior  examina- 
tion, had  claimed  that  he  had  handed  the  letters  to  the  Times  merely 
for  the  latter's  protection,  to  substantiate  the  articles,  and  that  the  pub- 
lication of  the  letters  "came  upon  me  by  surprise;"  the  falsehoods  ex- 
posed in  the  following  answers  were  in  a  sense  partly  immaterial,  but 
they  served  all  the  more  to  show  the  man's  thoroughly  false  character : 
Q.  "You  were  aware  of  the  intended  publication  of  that  correspond- 
ence?" A.  "No,  I  was  not  at  all  aware."  Q.  "What?"  A.  "Cer- 
tainly not."  .  .  .  Q.  "You  have  already  said  that  you  were  aware, 
although  you  did  not  know  they  were  to  appear  in  the  Times,  that  there 
were  grave  charges  to  be  made  against  Mr.  Parnell  and  the  leading 
members  of  the  Land  League?"  A.  "I  was  not  aware  till  the  publica- 
tion actually  commenced."  Q.  "Do  you  swear  that?"  A.  "1  do."  Q. 
"No  mistake  about  that?"  A.  "No."  Q.  "Is  that  your  letter  (pro- 
duced)? Don't  trouble  to  read  it?"  A.  "Yes;  I  have  no  doubt  about 
it."  Q.  "My  Lords,  that  is  from  Anderton's  Hotel,  and  is  addressed 
by  the  witness  to  Dr.  Walsh,  Archbishop  of  Dublin.  The  date,  my 
Lords,  is  March  4,  1887,  three  days  before  the  first  appearance  of  the 
first  series  of  articles  known  as  'Parnellism  and  Crime.'  (Reading.) 
■"Private  and  confidential.  My  Lord, — The  importance  of  the  matter 
about  which  I  write  will  doubtless  excuse  this  intrusion  on  your  atten- 
tion. Briefly,  I  wish  to  say  that  /  have  been  made  aware  of  the  details 
of  certain  proceedings  that  are  in  preparation  with  the  object  of  de- 
stroying the  influence  of  the  Parnellite  party  in  Parliament.'  (To  wit- 
ness.) What  were  these  certain  proceedings  that  were  in  preparation?" 
A.  "I  do  not  recollect."  Q.  "Turn  to  my  Lords,  Sir,  and  repeat  that 
answer."  A.  "I  do  not  recollect."  Q.  "Do  you  swear  that,  writ- 
ing on  the  4th  of  March  and  stating  that  you  had  been  made  aware  of 
the  details  of  certain  proceedings  that  were  in  preparation  with  the 
object  of  destroying  the  influence  of  the  Parnellite  party  in  Parlia- 
ment less  than  two  years  ago,  you  do  not  know  what  that  referred  to?" 
A.  "I  do  not  know  really."  Q.  "May  I  suggest?"  A.  "Yes."  .  .  . 
Q.  "Did  that  passage  refer  to  these  letters,  among  other  things?"  A. 
"No,  I  rather  fancy  it  had  reference  to  the  forthcoming  articles."  Q. 
"1  thought  you  told  us  you  did  not  know  anything  about  the  forthcom- 
ing articles?"  A.  "Yes,  I  did.  I  find  now  that  I  am  mistaken,  but 
I  must  have  heard  something  about  them."  Q.  "Try  and  not  make 
the  same  mistake  again,  if  you  please.  (Reading.)  T  cannot  enter 
more  fully  into  details  than  to  state  that  the  proceedings  referred  to 


No.  279.  INTRODUCTORY.  263 

consist  in  the  publication  of  certain  statements,  purporting  to  prove  the 
complicity  of  Mr.  Parnell  himself  and  some  of  his  supporters  with  mur- 
ders and  outrages  in  Ireland,  to  be  followed  in  all  probability  by  the 
institution  of  criminal  proceedings  against  these  parties  by  the  govern- 
ment.' Who  told  you  that?"  A.  "I  have  no  idea."  Q.  "Did  that 
refer,  among  others,  to  the  incriminatory  letters  ?"  A.  "1  do  not 
recollect  that  it  did."  Q.  "Do  you  swear  it  did  not?"  A.  "I  will 
not  swear  it  did  not."  Q.  "Do  you  think  it  did?"  A.  "No."  Q. 
■"Very  well;  did  you  think  that  these  letters,  if  genuine,  would  prove, 
or  would  not  prove,  Mr.  Parnell's  complicity  with  crime?"  A.  "I 
thought  they  were  very  likely  to  prove  it."  Q.  "Now,  reminding  you 
of  that  opinion,  and  the  same  with  Mr.  Egan,  I  ask  you  whether  you 
did  not  intend  to  refer — I  do  not  suggest  solely,  but  among  other  things 
— to  the  letters  as  being  the  matter  which  would  prove,  or  purport  to 
prove  complicity?"  A.  "Yes,  I  may  have  had  that  in  mind."  Q. 
■*'You  can  hardly  doubt  that  you  had  that  in  your  mind?"  A.  "I  suppose 
I  must  have  had."  Q.  (Reading.)  'Your  Grace  may  be  assured  that 
I  speak  with  full  knowledge,  and  am  in  a  position  to  prove  beyond  all 
doubt  or  question  the  truth  of  what  I  say.'  Was  that  true?"  A.  "It 
<:ould  hardly  have  been  true."  Q.  "Then  you  wrote  that  which  was 
false?"  A.  "I  did  not  suppose  his  Lordship  would  give  any  strength 
to  what  I  said.  I  do  not  think  it  was  warranted  by  what  I  knew." 
Q.  "Did  you  make  an  untrue  statement  in  order  to  add  strength  to 
what  you  had  said?"  A.  "Yes."  Q.  "A  designedly  iintrue  state- 
ment, was  it?"  A.  "Not  designedly."  Q.  "Try  and  keep  your  voice 
up."  A.  "I  say  not  designedly."  Q.  "Accidentally?"  A.  "Perhaps 
so."  Q.  "Do  you  believe  these  letters  to  be  genuine f"  A.  "I  do." 
Q.  "And  did  at  that  time?"  A.  "Yes."  Q.  "(Reading.)  'And  I 
may  further  assure  your  Grace  that  /  am  also  able  to  point  out  how  the 
designs  may  be  successfully  combated  and  finally  defeated.'  (To  wit- 
ness.) Now  if  these  documents  were  genuine  documents,  and  you 
believed  them  to  be  such,  how  were  you  able  to  assure  his  Grace  that 
you  were  able  to  point  out  how  the  designs  might  be  successfully  com- 
bated and  finally  defeated?"  A.  "Well,  as  I  say,  I  had  not  the  letters 
actually  in  my  mind  at  that  time,  so  far  as  I  can  remember.  I  do  not 
recollect  that  letter  at  all."  Q.  "You  told  me  a  moment  ago  without 
hesitation  that  you  had  both  in  your  mind?"  A.  "But,  as  I  say,  it 
had  completely  faded  out  of  my  memory."  Q.  "That  I  can  under- 
stand." A.  "I  have  not  the  slightest  idea  of  what  I  referred  to."  Q. 
"Assuming  the  letters  to  be  genuine,  what  were  the  means  by  which 
you  were  able  to  assure  his  Grace  you  could  point  out  how  the  designs 
might  be  successfully  combated  and  finally  defeated?"  A.  "I  do  not 
know."  Q.  "Oh,  you  m.ust  think,  Mr.  Pigott,  please.  It  is  not  two 
years  ago,  you  know.  Mr.  Pigott,  had  you  qualms  of  conscience  at  this 
time,  and  were  you  afraid  of  the  consequences  of  what  you  had  done?" 
^.  "Not  at  all."  Q.  "Then  what  did  you  mean  ?"  ^.  "I  cannot  tell  vou 
at    all."0.  "Try."     A.  "I    cannot."     Q.  "Try."     A.  "I    really    cannot." 


264  HEARSAY   RULE.  Ko.  279. 

Q.  "Try."  A.  "It  is  no  use."  Q.  "Am  I  to  take  it,  then,  that  the  an- 
swer to  my  Lords  is  that  you  cannot  give  any  explanation?"  A.  "I 
really  cannot."  .  .  .  Q.  "Now  you  knew  these  impending  charges  were 
serious?"  A.  "Yes."  Q.  "Did  you  believe  them  to  be  true?"  A.  "I 
cannot  tell  you  whether  I  did  or  not,  because,  as  I  say,  I  do  not  recol- 
lect." .  .  .  Q.  "First  of  all,  you  knew  then  that  you  had  procured  and 
paid  for  a  number  of  letters  ?"  A.  "Yes."  Q.  "Which,  if  genuine,  you 
have  already  told  me  would  gravely  implicate  the  parties  from  whom 
they  were  supposed  to  come?"  A.  "Yes,  gravely  implicate."  Q.  "You 
regard  that  as  a  serious  charge?"  A.  "Yes."  Q.  "Did  you  believe  that 
charge  to  be  true  or  false?"  A.  "I  believed  that  to  be  true."  .  .  .  Q. 
"Now  I  will  read  you  this  passage : — 'P.  S.  I  need  hardly  add  that 
did  I  consider  the  parties  really  guilty  of  the  things  charged  against 
them,  I  should  not  dream  of  suggesting  that  your  Grace  should  take  part 
in  an  effort  to  shield  them.  I  only  wish  to  impress  on  your  Grace  that 
the  evidence  is  apparently  convincing,  and  would  probably  be  sufficient 
to  secure  conviction  if  submitted  to  an  English  jury.'  What  have  you 
to  say  to  that?"  A.  "I  say  nothing,  except  that  I  am  sure  I  could  not 
have  had  the  letters  in  my  mind  when  I  said  that,  because  I  do  not  think 
the  letters' convey  a  sufficiently  serious  charge  to  warrant  my  writing 
that  letter."  Q.  "But  as  far  as  you  have  yet  told  us  the  letters  consti- 
tuted the  only  part  of  the  charge  with  which  you  had  anything  to  do?" 
A.  "Yes,  that  is  why  I  say  that  I  must  have  had  something  else  in  my 
mind  which  I  cannot  recollect.  I  must  have  had  some  other  charges 
in  my  mind."  Q.  "Can  you  suggest  anything  that  you  had  in  your  mind 
except  the  letters?"  A.  "No,  I  cannot."  .  .  .  [On  the  next  day,  when 
Pigott  resumed  his  examination]  :  Q.  "Then  I  may  take  it  that  since 
last  night  you  have  removed  from  your  mind — I  think  your  bosom  was 
the  expression  you  used — that  this  communication  of  yours  [to  the  Arch- 
bishop] referred  to  some  fearful  charge,  something  not  yet  mentioned?" 
A.  "No,  I  told  you  so  last  night,  but  I  am  sure  that  it  is  not  so.  I  will 
tell  you  my  reason."  Q.  "You  need  not  trouble  yourself."  A.  "I  may 
say  at  once  that  the  statements  I  made  to  the  Archbishop  xvere  entirely 
unfounded."  .  .  .  Q.  "Then  in  the  letters  I  have  up  to  this  time  read — 
or  some  of  them — you  deliberately  sat  down  and  wrote  lies?"  A.  "Well, 
they  were  exaggerations ;  I  would  not  say  they  were  lies."  Q.  "Was 
the  exaggeration  such  as  that  it  left  no  truth?"     A.  "I  think  very  little." 


PARNELL  COMMISSION'S  PROCEEDINGS. 

^2d  Day,  Times'  Rep.,  pt.  20,  pp.  145,  242 . 

^Same  trial  as  the  preceding;  the  Irish  Land  League  was  charged 

with  collecting  funds  to  be  used  for  supporting  crime  and  outrage  and 

armed  rebellion,   and  Mr.   Parnell  was  under  cross-examination 

as  to  the  purpose  for  which  he  collected  money  during  his  tour 

in  America ;   he  admitted  accepting  money  from  all  sources,   including 

I — This    is    intended    to    illustrate    that       too    far    and    reacts    against    the    cross-ex- 
type  of  cross-examination   which   is  carried       aminer. 


No.  280.  INTRODUCTORY.  265 

those  "physical  force"  adherents  who  favored  dynamite-violence  and 
the  like,  but  claimed  that  he  received  it  for  the  sole  purpose  of  furthering 
the  peaceable  and  lawful  methods  of  the  Land  League ;  Sir  Richard 
Webster,  the  Attorney-General,  in  cross-examining,  brought  up  the  fol- 
lowing significant  incident.  Q.  "Do  you  remember  the  celebrated  oc- 
casion at  Troy,  when  a  gentleman  came  forward  and  offered  you  'five 
dollars  for  bread  and  tzventy  dollars  for  lead'?"  A.  "Yes."  Q.  "You 
did  not  think  it  necessary  to  refuse  the  twenty  dollars  for  lead?"  A.  "I 
was  very  glad  to  get  the  money,  but  not  for  lead."  Q.  "In  your  pres- 
ence, then,  at  Troy,  a  man  offered  five  dollars  for  bread  and  twenty  for 
lead?"  A.  "That  was  the  expression  used."  Q.  "You  understood  that 
to  mean  that  some  one  in  the  audience  was  ready  to  subscribe  five  dol- 
lars for  charity  and  twenty  dollars  for  fighting  purposes?"  A.  "Not  a 
bit  of  it.  I  understood  that  he  was  ready  to  subscribe  five  dollars  to  our 
charitable  fund  and  twenty  dollars  in  support  of  the  Land  League  move- 
ment." Q.  "Then  did  you  think  it  a  fair  description  of  your  agitation 
to  call  it  'lead'?"  A.  "No,  I  did  not  think  it  was."  Q.  "Why  did  you 
think  the  gentleman  meant  the  Land  League  by  'lead'?"  A.  "Because 
if  he  had  not  he  would  not  have  given  the  money  to  me."  Q.  "Do  you 
represent  that  a  public  offer  of  twenty  dollars  for  lead  in  support  of 
your  agitation  and  an  acceptance  of  the  sum  on  your  side  would  be 
understood  as  a  repudiation  of  physical  force  opinions?"  A.  "At  the 
beginning  of  my  meetings  in  America  I  had  declared  that  I  would  not 
receive  one  cent  for  arms  or  for  any  unconstitutional  or  illegal  movement. 
.  .  .  Having  made  that  declaration  at  the  outset  of  my  tour,  and  having 
said  subsequently  nothing  inconsistent  with  that  declaration,  I  consider 
that  no  man  in  his  senses  would  have  offered  me  twenty  dollars  believing 
that  the  money  would  be  used  for  the  very  purposes  which  I  had  repudi- 
ated." .  .  .  Q.  "Now,  do  you  not  know  that  that  speech  about  lead  was 
repeatedly  quoted  in  Ireland,  and  that  the  construction  put  upon  it  was 
that  the  subscription  was  for  physical  force  matters?"  A.  "By  your  side 
it  was  quoted,  I  know."  Q.  "What  do  you  mean  by  my  side?"  A.  "The 
Tory  party."  .  .  .  Q.  "Did  not  Boyton,  the  Land  League  organizer, 
quote  the  speech  as  meaning  what  I  have  indicated?"  A.  "I  do  not  know 
that  he  did."  Q.  "Do  you  not  know  it  has  been  proved  already 
in  this  case?"  A.  "1  do  not.  The  only  use  made  of  the  speech  in  that 
sense  was  when  Mr.  O'Hanlon  tried  to  break  up  our  meeting  in  the 
Rotunda.  He  wrote  a  letter  to  a  newspaper  next  day  wanting  to  know 
what  I  had  done  with  these  twenty  dollars."  0.  "And  suggesting  that 
the  money  ought  to  have  gone  to  the  physical  force  party  for  the  pur- 
chase of  lead?"    A.  "Yes;  he  thought  that  I  was  misappropriating  it." 


266  HEARSAY  RULE.  No.  281. 


(A)     SATISFACTION  OF  THE  RULE, 

BY    CROSS-EXAMINATION  AND   CONFRONTATION. 

BuLLER^  J.,  Trials  at  Nisi  Prius,  240  {ante  ly^y)  :  ''If  the  witness  be 
examined  de  bene  esse,  and,  before  the  coming  in  of  the  answer,  the  de- 
fendant not  being  in  contempt,  the  witness  die,  yet  his  deposition 
^^  shall  not  be  read,  because  the  opposite  party  had  not  the  power  of 
cross-examination,  and  the  rule  of  the  common  law  is  strict  in  this,  that 
no  evidence  shall  be<  admitted  but  what  is  or  might  have  been  under  ex- 
amination of  both  parties.  ...  A  deposition  cannot  be  given  in  evidence 
against  any  person  that  was  not  a  party  to  the  suit;  and  the  reason  is 
because  he  had  not  liberty  to  cross-examine  the  witness,  and  it  is  against 
natural  justice  that  a  man  should  be  concluded  by  proofs  in  a  cause  to 
which  he  was  not  a  party.  .  .  .  From  what  has  been  said,  it  is  evident 
that,  as  there  can  be  no  cross-examination,  a  voluntary  affidavit  is  no 
evidence  between  strangers." 


REX  v.  ERI  SWELL  (1790). 

3  T.  R.  707- 

Pauper  settlement.  The  pauper,  John  Sharp,  came  into  the  parish 
of  Icklingham  All  Saints  in  1767,  where  he  was  employed  as  a  day 
laborer  to  work  on  the  navigation.  In  1779  he  was  taken  before 
*^"  two  of  his  majesty's  justices  of  the  peace  for  the  said  county,  by 
the  overseers  of  the  poor  of  the  parish  of  Icklingham  All  Saints,  for  the 
jDurpose  of  being  examined  as  to  the  place  of  his  last  legal  settlement; 
in  consequence  of  which  the  examination  was  taken  upon  oath  before 
those  two  justices,  and  signed  by  the  pauper.  No  proceedings  were  had 
in  consequence  of  this  examination  until  the  order  of  removal,  which  is 
the  subject  of  this  appeal,  was  applied  for  and  made.  The  pauper,  from 
the  time  of  the  examination  being  taken,  continued  to  reside  in  Ickling- 
ham All  Saints  for  about  five  years,  endeavoring  to  gain  his  livelihood, 
and  without  becoming  chargeable  to  that  parish,  when  he  became  in- 
sane, and  continued  in  a  state  of  insanity  to  the  time  of  his  removal  to 
Eriswell  as  aforesaid.  On  the  part  of  the  respondents  this  examina- 
tion was  offered  in  evidence,  and  objected  to  on  the  part  of  the  appel- 
lants. 

Kenyon^  L.  C.  J. :  "Examinations  upon  oath,  except  in  the  excepted 
cases,  are  of  no  avail  unless  they  are  made  in  a  cause  or  proceeding 
depending  between  the  parties  to  be  affected  by  them  and  where  each  has 
an  opportunity  of  cross-examining  the  witness.  .  .  .  Without  stating  the 
cases  which  occur  on  this  head,  I  will  do  little  more  than  refer  to  the 
case  of  The  King  v.  Paine,  in  Salk.  281,  &  5  Mod.  163  [1696].     That 


No.  283.  (a)  the  rule  satisfied.  267 

was  not  loosely  decided,  but  was  the  opinion  of  this  Court  assisted  by 
the  Court  of  Common  Pleas.  In  Salkeld  it  is  expressly  said  that  the 
rule  cannot  be  extended  further  than  the  particular  case  of  felony;  and 
in  the  other  book  the  Chief  Justice  declared  that  the  depositions  were 
not  evidence;  and  a  weighty  reason  is  given,  namely  'the  defendant  not 
being  present  when  they  were  taken  before  the  mayor,  and  so  had  lost 
the  benefit  of  a  cross-examination.'  ,  .  .  [In  this  case  the  deposition]  was 
ex  parte,  obtained  at  the  instance  of  those  overseers  whose  parish  was 
to  benefit  by  it,  and  behind  the  backs  of  the  parish  against  whom  it  has 
now  been  used,  without  having  an  opportunity  of  knowing  what  was 
going  on  or  attending  to  have  the  benefit  of  a  cross-examination.  I  re- 
gard the  question  as  of  the  last  importance  and  as  putting  in  danger  the 
law  of  evidence  in  which  every  man  in  the  kingdom  is  deeply  con- 
cerned."^ 


EVANS  v.  ROTHSCHILD  (1895). 

54  Kan.  74y,  jp  Pac.  '^01. 

Allen^  J. :  "This  was  an  action  of  replevin,  brought  by  the  defend- 
ants in  error  as  partners,  under  the  firm  name  of  E.  Rothschild  &  Bros.', 
against  the  sheriff  of  Washington  county,  to  recover  certain  mer- 
^****  chandise.  On  his  own  application,  William  Morrison  was  made 
a  party,  and  answered,  claiming  ownership  of  the  property  in  contro- 
versy. On  the  22d  of  October,  1890,  the  plaintiffs  served  a  notice  on 
the  attorney  for  the  sheriff  that  they  would  take  depositions  in  Chicago 
en  the  28th  of  October,  1890,  between  the  hours  of  8  o'clock  a.  m.  and 
6  o'clock  p.  m.  They  also,  at  the  same  time,  served  another  notice  that 
they  would  take  depositions  on  the  day  stated  in  tha  other  notice,  in  St. 
Joseph,  Mo.  The  defendant  appeared  by  attorney,  and  attended  the  tak- 
ing of  depositions  at  St.  Joseph,  but  did  not  appear  at  Chicago.  Before 
the  commencement  of  the  trial,  the  defendants  duly  excepted  to  the  depo- 
sitions taken  at  Chicago,  on  the  ground  that  they  had  elected  to  appear 
and  attend  the  taking  of  the  depositions  at  St.  Joseph,  and  that  they 
could  not  be  required  to  attend  in  two  places,  distant  from  each  other, 
at  the  same  time.  The  Court  overruled  the  exceptions,  and  permitted 
both  depositions  to  be  read  at  the  trial. 

"Section  352  of  the  Code  of  Civil  Procedure  provides  for  the  service 
of  a  notice  of  the  time  and  place  of  taking  depositions,  as  follows :  'The 
notice  shall  be  served  so  as  to  allow  the  adverse  party  sufficient  time,  by 
the  usual  route  of  travel,  to  attend,  and  one  day  for  preparation,  exclu- 
sive of  Sunday  and  the  day  of  service.'  Does  this  permit  the  service  of 
two  or  more  notices  to  take  depositions  at  places  widely  separate  from 
each  other,  on  the  same  day.  provided  only  the  notice  is  served  in  suffi- 
cient time  to  give  the  party  an  opportunity  to  go  to  either  place  desig- 
nated?   We  think  the  spirit,  if  not  the  letter,  of  the  statute,  clearly  pro- 

2 — Compare   the  authorities  cited   in  W.,  §§    i373-i375- 


268 


HEARSAY  RULE. 


No.  283. 


hibits  any  such  practice.  Where  testimony  is  taken  by  deposition,  it  is 
in  one  sense  a  part  of  the  trial  of  the  cause,  and  the  only  chance  given 
to  the  opposing  party  to  confront  the  witnesses  whose  depositions  are 
taken  under  the  notice  is  to  attend  before  the  officer  who  takes  them. 
The  only  opportunity  to  apply  the  tests  necessary  to  correct  errors  or 
detect  falsehood  in  the  statements  drawn  out  on  direct  examination  is 
that  afforded  by  cross-examination  at  the  same  time.  A  party  to  an 
action  has  a  right,  if  he  deems  it  necessary,  to  be  personally  present 
when  depositions  are  being  taken  affecting  his  interests.  He  is  not  re- 
quired to  employ  a  multitude  of  attorneys  to  protect  his  interests  at 
different  places  on  the  same  day,  nor  does  the  fact  that  he  chooses  to 
intrust  his  interests  to  the  care  of  an  attorney  (other  than  the  one  who 
tries  the  case  for  him)  at  one  place,  require  him  or  his  principal  counsel 
to  attend  on  the  same  day  at  another  place. "^ 


WRIGHT  V.  DOE  dem.  TATHAM  (1834). 
I  A.  &  E.  s- 

Ejectment;  the  plaintiff  below  claimed  as  heir-at-law  of  John  Mars- 
den  deceased,  who  was  admitted  to  have  died  seised,  leaving  the  plaintiff 
belOw  his  heir-at-law,  but  Wright  claimed  under  a  will  of  Mars- 
284      den. 

TiNDAL,  C.  J. :  "As  to  the  second  ground  of  exception,  the  facts  are, 
that  Mr.  Tatham,  the  lessor  of  the  plaintiff  in  this  action,  filed  his  bill 
in  Chancery  against  Mr.  Wright,  the  defendant  in  the  present  action, 
and  three  other  persons.  And,  vipon  the  answers  of  the  defendants 
coming  in,  the  Master  of  the  Rolls  directed  an  issue  at  law  upon  the 
question,  whether  the  said  John  Marsden  did  devise  his  estates  or  not 
by  the  very  identical  will  which  is  now  in  dispute.  It  was  further 
proved  that  a  trial  of  such  issue,  in  which  Mr.  Wright  and  the  other 
defendants  in  the  chancery  suit  were  the  plaintiffs,  and  Mr.  Tatham  was 
the  defendant,  afterwards  took  place ;  and  that,  on  the  trial  of  that 
issue,  Mr.  Giles  Bleasdale,  one  of  the  attesting  witnesses  to  the  will, 
was  called  and  examined  on  the  part  of  Mr.  Wright,  and  was  cross- 
examined  on  the  part  of  Mr.  Tatham.  Now,  if  the  former  trial  had 
taken  place  in  a  suit  between  Mr.  Wright  and  Mr.  Tatham,  and  those 
persons  alone,  no  doubt  could  have  been  raised  that,  after  the  death  of 
this  witness,  the  evidence  which  he  gave  upon  the  former  trial  would 
have  been  admissible  upon  the  second.  For,  in  that  case,  it  would  have 
been  evidence  given  in  a  suit  between  the  very  same  parties  upon  the 
same  subject-matter,  at  a  trial  on  which  Mr.  Tatham  had  the  right  to 
object  to  the  competency  of  the  witness,  to  cross-examine  him  at  the 
trial,  and  to  contradict  him  by  other  testimony.  Upon  such  a  state 
of  facts,  therefore,  it  is  unnecessary  to  cite  cases  to  the  point,  that  the 
evidence  of  this  witness,  given  on  the  former  occasion,  would,  after  his 
death,  be  admissible  at  the  second  trial. 

3 — Compare  the  authorities  cited  in   W.,  §    i379- 


No.  286.  (a)  the  rule  satisfied.  269 

"But  the  only  distinction  between  the  case  above  supposed  and  the 
present  is,  that  Mr.  Wright  was  not  the  only  party,  but  was  joined  with 
other  plaintiffs  in  the  former  action;  and  that  Mr.  Tatham,  instead  of 
being  the  plaintiff  in  the  present  action,  is  only  the  lessor  of  the  plain- 
tiff. But  we  think  neither  of  these  circumstances  will  make  any  differ- 
ence as  to  the  admissibility  of  the  evidence  in  question.  For  the  result 
of  the  authorities  is,  that  the  lessor  of  the  plaintiff  is  the  real  party  in 
an  ejectment,  that  the  nominal  plaintiff  has  no  interest,  and  that,  in  an 
ejectment  between  Doe  on  the  demise  of  J.  S.  against  B.,  J.  S.  is  bound 
by  a  verdict  for  the  defendant.  Neither  can  there  be  any  real  differ- 
ence from  the  circumstance  that,  in  the  former  action,  the  present  de- 
fendant, Mr.  Wright,  was  joined  with  other  persons  as  plaintiff's;  for 
Mr.  Tatham,  the  lessor  of  the  plaintiff  in  this  action,  had  precisely  the 
same  power  of  objecting  to  the  competency  of  Bleasdale,  the  same  right 
of  cross-examination  and  of  calling  witnesses  to  discredit  or  contradict 
his  testimony,  on  the  former  trial,  as  he  would  have  had  if  Mr.  Wright 
had  been  the  sole  plaintiff  in  that  suit,  or  as  he  would  have  had  now  if 
Bleasdale  had  been  alive  and  subpoenaed  as  a  witness.  It  is  manifest, 
therefore,  that  the  verdict  on  the  former  trial,  and  the  examination  of 
witnesses  on  each  side,  did  not  take  place  in  a  suit  between  third  par- 
ties or  strangers,  but  virtually  and  substantially  between  the  very  same 
parties  who  are  parties  to  the  present  suit,  and  upon  the  very  same  sub- 
ject-matter of  dispute."* 


285 


Constitution  of  the  United  States  (1787),  Amendment  VI:  "In 
all  criminal  prosecutions,  the  accused  shall  enjoy  the  right  .  .  . 
to  be  confronted  with  the  witnesses  against  him." 


HOWSER  V.  COMMONWEALTH   (1865). 

51  Pa.  SS7. 

Woodward,  C.  J.:  "Confronting  witnesses  does  not  mean  impeaching 
their  character,  but    means  cross-examination    in    the    presence    of    the 
accused.     When  the  common  law  of  England  was  transported  to 
"  these  colonies,  it  gave  a  person  charged  with  a  capital  crime  no 

compulsory  process  to  obtain  witnesses  and  entitled  him  to  no  exami- 
nation by  himself  or  his  counsel  of  witnesses  brought  against  him.  .  .  . 
To  remedy  this  state  of  the  law,  our  constitutions  all  declared — what 
statutes  had  then  provided  in  England — that  the  accused  should  have  an 
impartial  trial  by  jury,  should  have  process  for  witnesses  and  be  en- 
titled to  counsel  to  examine  them,  and  to  cross-examine  those  for  the 
prosecution  in  the  presence  of  (confronting)  the  accused."'' 

4 — Compare    the   authorities   cited    in   W.,  of   the    People    was   not,    we   think   to   intro- 

§§    1386-1388.  duce    any    new    principle    into    the    law    of 

5 — Leonard,   J.,   in   State   v.    McO'Blenis,  criminal     procedure,     but    to    secure    those 

24    Mo.    416,    435    (1857):      "The    purpose  that    already    existed    as    part    of    the    law 


270 


HEARSAY  RULE. 


No.  287. 


UNITED  STATES  v.  MACOMB   (1851). 
5  McLean  2^6. 

Drummond,  J. :  "The  defendant  was  indicted  under  the  21st  and  22d 
sections  of  the  Post  Office  Act  of  March  3,  1825,  4  Statutes  at  Large, 
107-9,  ^"^"^  stealing  from  the  mail  a  packet  containing  a  land  war- 
"^'  rant,  and  fifty  dollars  in  bank  notes.  It  appeared  that  the  offence 
was  committed  near  Dixon,  on  the  ist  of  August,  1850.  The  packet 
was  mailed  at  Freeport  on  the  30th  of  July,  addressed  to  Dixon.  On 
the  day  the  offence  was  committed,  the  defendant  was  arrested  at  the 
latter  place,  and  a  few  days  afterwards,  a  preliminary  examination  took 
place  there  before  an  officer.  The  defendant  was  present  with  his 
counsel,  at  the  examination,  during  which  one  Hurlbut,  since  deceased, 
who  had  enclosed  the  land  warrant  and  bank  notes,  and  directed  and 
posted  the  letter,  testified  as  a  witness  for  the  United  States.  Hurlbut 
was  subjected — to  use  the  language  of  the  witnesses  introduced  here — 
to  a  long  and  tedious  cross-examination  by  the  counsel  of  the  defendant. 
An  objection  was  taken  by  the  couns'el  of  the  defendant  at  the  trial  in 
this  court  because  witnesses  were  permitted  to  state  to  the  jury  what 
Hurlbut  had  sworn  to  on  the  preliminary  examination.  .  .  .  The  ob- 
jection resolves  itself  into  the  two  following  propositions:  First:  The 
declarations  of  a  deceased  witness  made  at  a  former  trial  between  the 
same  parties,  upon  the  same  subject-matter,  can  never  be  given  in  evi- 
dence in  criminal  cases.  Secondly :  If  they  can  be,  it  is  only  when  the 
persons  who  are  called  on  to  give  the  declarations  of  a  deceased  witness, 
can  repeat  the  precise  words  of  the  witness,  and  it  being  admitted  that 
that  was  not  done  here,  the  testimony  ought  to  have  been  rejected.*^  .  .  . 

"[As  to  the  first  point,]  why  should  not  the  rule  in  civil  and  criminal 
proceedings  be  the  same  in  this  respect?  The  great  object  of  all  judi- 
cial investigation  is  to  ascertain  facts,  and  to  do  justice  between  the 
parties, — in  criminal  cases,  to  shield  the  innocent,  and  punish  the  guilty. 
In  accomplishing  this,  however,  Courts  must  act  in  conformity  with  some 
general  rules  founded  in  reason  and  experience.  But  after  all  our  ef- 
forts we  only  make  an  approximation  to  this  object.  Many  an  inno- 
cent man  has  been  and  will  be  punished, — many  a  guilty  one  go  free. 
If  it  be,  on  the  whole,  a  sound  rule  to  admit  the  declarations  of  a  de- 


of  the  land  from  future  change  by  ele- 
vating them  into  constitutional  law.  .  .  . 
It  was  never  supposed  in  England,  at  any 
time,  that  this  privilege  was  violated  by 
the  admission  of  a  dying  declaration,  or 
of  the  deposition  of  a  deceased  witness 
under  proper  circumstances;  nor,  indeed, 
by  the  reception  of  any  other  hearsay  evi- 
dence established  and  recognized  by  law 
as   an   exception   to   the    rule." 

Hartley,    C.    J.,    in    Summons   v.    State,    5 
Oh.  St.  341   (1856):  "Evidence  of  the  state- 


ments of  a  deceased  witness  on  a  former 
trial  .  .  .  would  seem  to  be  now  confined 
to  cases  where  opportunity  for  cross-ex- 
amination had  been  afforded,  and  therefore 
to  cases  where  the  accused  had  been  con- 
fronted by  the  deceased  witness  when  the 
testimony   was   given    on   the    former    trial." 

Compare  the  authorities  cited  in  W.,  §§ 
1397.    1398. 

6 — This  second  point  is  concerned  with 
the  principle  already  considered  ante,  No. 
203. 


No.  288.  (a)  the  rule  satisfied.  271 

ceased  witness,  made  on  a  former  trial,  in  a  case  involving  property  or 
reputation,  it  is  equally  so  in  cases  involving  life  and  liberty.  The 
ground  upon  which  we  proceed  in  each  case  is  the  presumption  of  the 
truth  of  the  declarations,  they  being  subjected  to  the  tests  which  the 
law  recognizes, — the  presence  of  the  accused,  and  the  right  of  cross- 
examination.  The  admissibility  of  this  species  of  evidence  depends  upon 
the  necessity  of  the  case,  and  upon  a  well-established  exception  to  the 
rule  which  excludes  hearsay, — if,  indeed,  we  may  not  in  one  sense  re- 
gard it  as  original  testimony.  We  receive  it  because  it  comes  up  to  one 
of  the  demands  of  the  law ;  it  is  the  best  evidence  which  can  be  pro- 
duced. Though  the  witness  has  been  once  confronted  with  the  defend- 
ant, and,  in  his  presence,  been  sworn  and  cross-examined,  it  may  be 
admitted,  it  is  more  satisfactory  to  have  him  again  produced  before  a 
jury  at  a  second  trial.  But  being  dead,  it  is  impossible,  and  we  resort 
to  the  next  best  source  of  truth, — his  sworn  statements  already  made.  I 
think  the  law  of  evidence,  as  now  administered,  is  quite  stringent  enough 
in  excluding  testimony,  and  I  confess  I  feel  a  strong  disposition  to  admit 
it  in  all  cases  where  it  can  be  done  without  violating  any  principle,  or  con- 
troverting any  settled  rule  of  law.  ...  In  the  instance  we  are  now  con- 
sidering, we  have  the  sanction  of  the  oath  itself,  administered  by  com- 
petent authority,  and  the  cross-examination  of  the  witness, — the  great 
test  of  truth, — by  the  party ;  and  there  is  thus  every  reasonable  safeguard 
thrown  around  the  claims  of  the  public  on  the  one  hand,  and  the  rights 
of  the  accused  on  the  other." 


Statutes.  United  States,  Rev.  St.  1878,  §  861 :  "The  mode  of  proof 
in  trials  of  actions  at  common  law  shall  be  by  oral  testimony  and  exami- 
nation of  witnesses  in  open  court,  except  as  hereinafter  provided", 
lb.  §  863 :  In  civil  cause  in  a  district  or  circuit  court  a  deposition 
may  be  taken  "when  the  witness  lives  at  a  greater  distance  from  the  place 
of  trial  than  100  miles,  or  is  bound  on  a  voyage  to  sea,  or  is  about  to  go 
out  of  the  United  States,  or  out  of  the  district  in  which  the  case  is  to 
be  tried,  and  to  a  greater  distance  than  100  miles  from  the  place  of  trial, 
before  the  time  of  trial,  or  when  he  is  ancient  and  infirm."  lb.  §  865 : 
"Unless  it  appears  to  the  satisfaction  of  the  Court  that  the  witness  is 
then  dead,  or  gone  out  of  the  United  States,  or  to  a  greater  distance  than 
100  miles  from  the  place  where  the  court  is  sitting,  or  that,  by  reason  of 
age,  sickness,  bodily  infirmity,  or  imprisonment,  he  is  unable  to  travel 
and  appear  at  court,  such  deposition  shall  not  be  used  in  the  cause", 
lb.  §866:  "In  any  case  where  it  is  necessary,  in  order  to  prevent  a  fail- 
ure or  delay  of  justice,  any  of  the  courts  of  the  United  States  may  grant 
a  dedimns  potestatcm  to  take  depositions  according  to  common  usage; 
....  and  the  provisions  of  §  863,  864.  and  865,  shall  not  apply  to  any 
deposition  to  be  taken  under  the  authority  of  this  section".'' 

7 — Cheves,  J.,  in  Drayton  v.  Wells,  i  mony  of  a  witness  who  has  been  examined 
N.  &  McC.  408  (1819):  "The  books  enu-  in  a  former  trial,  between  the  same  par- 
merate   four  cases  only   in   which   the  testi-        ties,    and    where    the    point    in    issue    wai 


272 


HEARSAY  RULE. 


No.  289. 


BOGIE  V.  NOLAN  (1888). 

p6  Mo.  85,  pi,  p  S.  W.  14. 

Action  on  three  promissory  notes  by  M.  A.  Bogie  against  George  N. 
Nolan,  administrator  of  the  estate  of  Mary  Dowling.  Brace,  J. :  "In  va- 
cation, before  the  trial,  the  defendant  took  the  deposition  of  the 
*'^"  plaintiff,  and  filed  it  in  the  cause,  and  the  plaintiff,  on  the  trial,  when 
putting  in  his  evidence  in  chief,  offered  to  read  his  deposition,  to  which 
defendant  objected,  and  the  court  sustained  his  objection,  and  refused 
to  permit  it  to  be  then  read.  When  the  defendant  came  to  put  in  his 
evidence,  he  offered  to  read  the  same  deposition  as  statements  and  ad- 
missions of  the  plaintiff,  to  which  plaintiff  objected,  'the  said  Bogie 
being  then  present  in  court.'  The  court  overruled  the  objection,  and 
permitted  the  same  to  be  read  as  statements  and  admissions  of  the  said 
Bogie.  .  .  .  The  declarations  of  a  party  to  a  suit,  made  in  a  deposition 
taken  by  his  adversary,  may  be  read  in  evidence  against  him  on  the 
trial  in  the  same  suit  in  which  such  deposition  was  taken,  whether  he 
be  present  or  absent.  He  is  none  the  less  a  party  because  his  adversary 
has  called  him  as  a  witness.  The  Legislature,  in  conferring  upon  a 
party  the  right  to  call  upon  his  adversary  to  testify,  and  in  providing 
means,  by  deposition,  to  procure  the  evidence  of  witnesses  who  might 
not  be  able  to  be  in  personal  attendance  upon  the  trial,  did  not  intend 
to  narrow  the  scope  of  inquiry,  for  the  very  truth  of  the  matter  in  con- 
troversy, by  abrogating  that  ancient,  well-recognized,  and  hitherto  un- 
questioned rule  of  evidence,  that  the  declarations  of  a  party  to  the  suit 
may  be  given  in  evidence  against  him, — a  rule  that  hitherto  has  had  no 
respect  for  time  or  place,  always  presuming  that  a  man's  statements,  as 
against  himself,  are  truthful,  whether  made  in  court  or  out  of  court,  on 
oath  or  in  casual  conversation,  orally  or  in  writing.  .  .  .  There  can  be 
no  difference  in  the  character  of  the  evidence  whether  the  declarations 
are  made  in  the  deposition  of  a  party  taken  in  his  own  case  then  on 


the  same,  may  be  given  in  evidence,  on 
a  second  trial,  from  the  mouths  of  other 
witnesses,  who  heard  him  give  evidence, — 
ist,  Where  the  witness  was  dead;  2nd, 
Where  he  was  insane;  3rd,  Where  he 
was  beyond  seas;  and  4th,  Where  the 
Court  was  satisfied  that  the  witness  had 
been  kept  away  by  the  contrivance  of  the 
opposite    party." 

Professoi  Simon  Greenleaf,  Evidence,  § 
168  (1842):  "The  same  principle  will  lead 
us  farther  to  conclude  that  in  all  cases 
where  the  party  has  without  his  own  fault 
or  concurrence  irrecoverably  lost  the  pow- 
er of  producing  the  witness  again,  whether 
from  physical  or  from  legal  causes,  he  may 
offer  the  secondary  evidence  of  what  he 
testified  in  the  former  trial.  If  the  lips  of 
the    witness    are    sealed,    it    can    make    no 


difference  in  principle  whether  it  be  by 
the  finger  of  death  or  by  the  finger  of  the 
law." 

Green,  J.,  in  Wells  v.  Ins.  Co.,  187  Pa. 
166,  40  Atl.  802  (1898):  "The  cause  of 
the  subsequently  accruing  incompetency  is 
not  material.  It  may  arise  from  absence, 
from  sickness,  from  interest,  from  death, 
or  from  a  newly-created  statutory  incom- 
petency; but  the  principle  controlling  them 
all  is  that  if,  at  the  time  the  deposition  or 
testimony  was  taken,  the  witness  was  com- 
petent, it  may  be  given  in  evidence  after 
the  incompetency  had  arisen.  Such  is  the 
sense  of  all  the  modern  decisions,  and  we 
think  the  conclusion  is  reasonable  and  just." 

Compare  the  authorities  cited  in  W.,  §§ 
1402-1413. 


No  291,  (a)  the  rule  satisfied.  273 

trial,  his  deposition  taken  in  another  case  to  which  he  was  a  party,  or 
taken  as  a  witness  in  a  case  in  which  he  was  not  a  party  and  had  no 
direct  interest.  They  are  admissible  in  each  case  for  the  same  reason, 
not  as  the  deposition  of  a  witness  under  the  statute,  but  as  the  declara- 
tion of  a  party  to  the  suit,"* 


(B)     EXCEPTIONS  TO  THE  RULE. 

SUGDEN  V.  LORD  ST.  LEONARDS  (1876). 
L.  R.  I  P.  D.  154. 
Jessel,  M.  R.  :  "It  might  well  have  been  that  our  law,  like  the  law 
of  some  other  countries,  should  have  admitted  as  evidence  the  declara- 
tions of  persons  who  are  dead,  in  all  cases  where  they  were  made 
*"^  under  circumstances  in  which  such  evidence  ought  properly  to 
have  been  admitted,  that  is,  where  the  person  who  made  them  had  no 
interest  to  the  contrary,  and  where  they  were  made  before  the  com- 
mencement of  the  litigation.  That  is  not,  however,  our  law.  As  a  rule 
the  declarations,  whether  in  writing  or  oral,  made  by  deceased  persons, 
are  not  admissible  in  evidence  at  all.  But  so  inconvenient  was  the  law 
upon  this  subject,  so  frequently  has  it  shut  out  the  only  obtainable 
evidence,  so  frequently  would  it  have  caused  a  most  crying  and  intoler- 
able justice,  that  a  large  number  of  exceptions  have  been  made  to  the 
general  rule.  I  will  consider,  first,  what  the  exceptions  are,  and  what 
is  the  principle  which  guides  the  Court  in  making  exceptions.  .  .  Now 
I  take  it  the  principle  which  underlies  all  these  exceptions  is  the  same. 
In  the  first  place,  the  case  must  be  one  in  which  it  is  difficult  to  obtain 
other  evidence,  for  no  doubt  the  ground  for  admitting  the  exceptions 
was  that  very  difficulty.  In  the  next  place,  the  declarant  must  be  dis- 
interested; that  is,  disinterested  in  the  sense  that  the  declaration  was 
not  made  in  favor  of  his  interest.  And,  thirdly,  the  declaration  must 
be  made  before  dispute  or  litigation,  so  that  it  was  made  without  bias  on 
account  of  the  existence  of  a  dispute  or  litigation  which  the  declarant 
might  be  supposed  to  favor.  Lastly,  and  this  appears  to  me  one  of  the 
strongest  reasons  for  admitting  it,  the  declarant  must  have  had  peculiar 
means  of  knowledge  not  possessed  in  ordinary  cases." 


1.     DYING  DECLARATION. 
REX  v.  WOODCOCK  (1789), 
2  Leach  Cr.  L.  4th  cd.  §00. 
Wife-murder.     The  deceased  was  found  lying  in  a  ditch,  in  a  nar- 
now  lane,  called  Robinson's  Lane,  in  the  vicinity  of  Chelsea,  in  the  county 
oi  Middlesex.     She  had  received  eight  wounds  about  the  head, 
face,  and  neck,  which  seem  to  have  been  inflicted  with  the  end 
of  a  blunt  instrument ;  and  was  so  exhausted  by  the  loss  of  blood  as  to 

8 — Compare   the   authorities  cited   in   W.,  §  1416. 


274 


HEARSAY    rule:     (b)     EXCEPTIONS. 


No.  291. 


be  apparently  dead.  The  body  was  taken  to  Chelsea  Poor-house,  put 
into  a  warm  bed,  and  by  medical  assistance  restored  to  life.  In  the 
course  of  eight  hours,  she  recovered  her  senses  to  such  a  degree,  that  a 
magistrate  was  called,  and  he  took  her  examination  under  oath;  the 
accused,  however,  not  being  present.  It  appeared  from  the  evidence  of 
the  surgeons,  that  she  died  in  about  eight-and-forty  hours  after  the 
examination  had  been  taken,  and  that  it  was  impossible  from  the  first 
moment  that  she  could  live  long,  but  that  although  she  retained  her 
senses  to  the  last  moment,  and  repeated  the  circumstances  of  the  ill 
usage  she  had  received,  she  never  expressed  any  apprehension,  or  seemed 
sensible  of  her  approaching  dissolution. 

Eyre,  C.  B.  :  "The  most  common  and  ordinary  species  of  legal  evi- 
dence consists  in  the  depositions  of  witnesses  taken  on  oath  before  the 
jury,  in  the  face  of  the  Court,  in  the  presence  of  the  prisoner,  and 
received  under  all  the  advantages  which  examination  and  cross-exami- 
nation can  give.  But  beyond  this  kind  of  evidence  there  are  also  two 
other  species  which  are  admitted  by  law:  The  one  is  the  dying  declara- 
tion of  a  person  who  has  received  a  fatal  blow;  the  other  is  the  exami- 
nation of  a  prisoner,  and  the  depositions  of  the  witnesses  who  may  be 
produced  against  him,  taken  officially  before  a  Justice  of  the  Peace,  by 
virtue  of  a  particular  Act  of  Parliament.*^  .  .  .  [In  the  former  case] 
the  general  principle  on  which  this  species  of  evidence  is  admitted  is 
that  they  are  declarations  made  in  extremity,  when  the  party  is  at  the 
point  of  death  and  when  every  hope  of  this  world  is  gone;  when  every 
motive  to  falsehood  is  silenced,  and  the  mind  is  induced  by  the  most 
powerful  considerations  to  speak  the  truth ;  a  situation  so  solemn  and 
so  awful  is  considered  by  the  law  as  creating  an  obligation  equal  to  that 
which  is  created  by  a  positive  oath  administered  in  a  court  of  justice. 
But  a  difficulty  also  arises  with  respect  to  these  declarations;  for  it  has 
not  appeared,  and  it  seems  impossible  to  find  out,  whether  the  deceased 
herself  apprehended  that  she  was  in  such  a  state  of  mortality  as  would 
inevitably  oblige  her  soon  to  answer  before  her  Maker  for  the  truth  or 
falsehood  of  her  assertions.  The  several  witnesses  could  give  no  satis- 
factory information  as  to  the  sentiments  of  her  mind  upon  this  subject. 
.  .  .  My  judgment  is  that  inasmuch  as  she  was  mortally  wounded  and 
■was  in  a  condition  which  rendered  almost  immediate  death  inevitable; 
as  she  was  thought  by  every  person  about  her  to  be  dying,  though  it  was 
difficult  to  get  from  her  particular  explanations  as  to  what  she  thought 
of  herself  and  her  situation ;  her  declarations  made  under  these  circum- 
stances ought  to  be  considered  by  a  jury  as  being  made  under  the  im- 
pression of  her  approaching  dissolution ;  for,  resigned  as  she  appeared  to 
be,  she  must  have  felt  the  hand  of  death  and  must  have  considered  her- 
self as  a  dying  woman."^" 


9 — The    judge    here    declared    the    exam- 
ination   inadmissible    from   the    latter   point 


of  view,  on  the  principle  of  No.   282,  ante. 
10 — R.  V.  Jenkins,  L.  R.  i  Cr.  C.  R.   192 


No.  293.  I.  DYING  DECLARATION.  275 


WILSON  V.  BOEREM  (1818). 
75  Johns.  286. 

Assumpsit,  on  a  promissory  note,  drawn  by  Thomas  Shieffelin,  in 
favor  of  the  defendant,  by  whom  it  was  endorsed  to  Josiah  Brown,  Jr., 
and  by  him  to  the  plaintiff.  The  note,  endorsements,  demand  of 
*^"  payment,  and  notice,  having  been  proved  on  the  part  of  the  plain- 
tiff, the  defendant  produced  witnesses  to  prove  that  the  note  was  en- 
dorsed by  Bpown  and  the  defendant,  for  the  accommodation  of  Shief- 
felin, and  delivered  to  the  plaintiff  by  Brown,  for  the  purpose  of  being 
discounted  by  him,  but  that  he  had  never  paid  anything  on  account  of 
the  note,  and  had  pledged  it  to  one  Simmons  for  his  own  debt.  The 
defendant's  counsel,  in  order  further  to  make  out  the  defence,  oft'erecl 
to  prove  the  dying  declarations  of  Brown,  in  relation  to  the  note. 

Thompson,  C.  J.:  "No  case,  either  in  the  English  courts  or  in  our 
own,  has  fallen  under  my  observation,  where  such  evidence  has  been 
admitted  in  civil  suit.  Such  testimony  is  inconsistent  with  two  fun- 
damental rules  in  the  law  of  evidence.  It  is  mere  hearsay,  not  under 
oath,  and  no  opportunity  is  given  for  cross-examination.  .  .  .  Whatever 
might  have  been  the  ground  on  which  this  kind  of  evidence  was  first 
admitted,  in  cases  of  homicide,  we  find  it  has  long  been  an  established 
rule  in  such  cases,  and,  I  may  say,  in  such  cases  only."^^ 


2.     STATEMENT  OF  FACTS  AGAINST  INTEREST. 

MIDDLETON  v.  MELTON  (1829). 

10  B.  &  C.  317. 

Action  against  a  surety  on  a  bond  given  by  a  collector  of  taxes. 

Bayley,   J. :    "The  question   in  this   case   is,   Whether  a   private   book 

kept  by  a  collector  of  taxes,  containing  entries  wherein  he  ac- 

knowledges   the   receipt   of   sums   of   money   in   his   character   of 

collector,  can  be  given  in  evidence  against  a  surety,  the  collector  having 

been  appointed  to  collect  the  taxes  mentioned  in  the  bond  pursuant  to 

(1869);  Kelly,  C.  B.:  "The  result  of  the  ...  Its  admission  can  be  justified  only 
cases  is  that  there  must  be  an  unqualified  on  the  ground  of  absolute  necessity,  growing 
belief  in  the  nearness  of  death,  a  belief  out  of  the  fact  that  the  murderer,  by  put- 
without  hope  that  the  declarant  is  about  ting  the  witness,  and  generally  the  sole 
to  die";  Byles,  J.:  "The  authorities  show  witness  of  his  crime,  beyond  the  power  of 
that  there  must  be  no  hope  whatever";  and  the  Court  by  killing  him,  shall  not  thereby 
a  declaration  by  one  having  "no  hope  at  escape  the  consequences  of  his  crime, 
present"  ot  recovery  was  rejected.  Com-  .  .  .  Necessity,  tlien,  being  the  only 
pare  the  authorities  cited  in  W.,  §§  1439-  ground  on  which  such  testimony  can  be 
1442.  admitted,  it  remains  to  be  seen  whether 
II — Kingman,  C.  J.,  in  State  v.  Bohan,  that  necessity  exists  so  generally,  or  to  so 
15  Knn.  418  (187s):  "Mr.  Redfield  states  great  an  extent,  where  the  death  of  any 
that  this  evidence  is  not  received  upon  any  one  else  than  the  declarant  is  the  subject 
other  ground  than  that  ot  necessity,  in  of  the  inquiry,  as  to  justify  the  adoption 
order  to  prevent  murder  going  unpunished.  ot    a    rule   admitting  such   testimony";  and 


276  HEARSAY  rule:   (b)   exceptions.  No,  293. 

the  provisions  of  an  act  of  Parliament.  In  this  case  Squire  was  the 
collector,  and  his  private  book  vi^as  found  after  his  death,  and  given  by 
his  daughter  to  the  defendant.  There  was  evidence  to  show,  therefore, 
that  it  was  left  in  the  defendant's  possession,  and  he  having  refused  to 
produce  it  at  the  trial  after  notice,  secondary  evidence  of  its  contents 
was  admissible.  It  was  proved  that  it  was  the  collector's  usual  habit  to 
collect  by  his  private  book,  and  to  mark  the  sums  he  received  with  ticks, 
and  that  those  ticks  denoted  that  those  sums  had  been  received  by  him. 
If  the  entries  mentioned  in  the  book  were  admissible  evidence  to  show 
that  he  received  those  sums,  they  will  be  sufficient  to  entitle  the  plaintiff 
to  retain  the  verdict  for  the  full  amount;  and  the  question  as  to  the 
admissibility  of  the  receipts  will  not  necessarily  arise.  .  .  .  The  ques- 
tion then  is,  Whether  such  an  entry,  made  by  an  individual  against  his 
own  interest,  may  be  evidence  of  the  fact  of  the  receipt  of  the  money 
against  a  third  party?  It  is  a  general  principle  of  evidence,  that  decla- 
rations or  statements  of  deceased  persons  are  admissible  when  they  ap- 
pear to  have  been  made  against  their  interest.  An  entry  in  a  book, 
whereby  the  party  making  it  charges  himself  with  the  receipt  of  money 
on  account  of  a  third  person,  or  acknowledges  the  payment  of  money 
due  to  himself,  has  been  held  to  be  evidence  of  the  receipt  or  payment 
of  such  money.  .  .  .  These  cases  establish  that  where  a  person  makes 
an  entry  charging  himself  with  the  receipt  of  a  sum  of  money,  that 
entry  is  evidence  of  the  fact  of  the  receipt  of  that  money  against  a  third 
person.  The  question  as  to  the  receipts  then  becomes  immaterial.  But 
if  the  entries  in  the  book  are  admissible  in  evidence,  because  the  tick 
marked  against  them  denotes  that  the  collector  had  received  the  money, 
the  receipts  signed  by  him  must  be  evidence  of  the  fact  of  such  receipt 
of  the  money  upon  the  same  principle." 

LiTTLEDALE,  J.:  "Warren  v.  Greenville,  2  Str.  1129,  Barry  v.  Bebbing- 
ton,  4  T.  R.  514,  and  Higham  v.  Ridgway,  10  East,  109,  establish  this 
general  principle,  that  where  a  person  has  peculiar  means  of  knowing 
a  fact,  and  makes  a  declaration  or  written  entry  of  the  fact,  which  is 
against  his  interest  at  the  time,  it  is  evidence  of  the  fact  as  between 
third  persons  after  his  death. "^^ 


SMITH  V.  BLAKEY  (1867). 

L.  R.  2  Q.  B.  326. 

Action  for  the  amount  of  an  advance  made  by  the  plaintiff  to  the 
defendant  on  a  consignment  of  boots  and  shoes.     In  proving  the  trans- 
action, the  plaintiff  offered  a  letter  written  to  him  in  London  by 
""*      one    Barker,    his   confidential    clerk,    now   deceased,   who   was   in 
charge  of  the   store  in  Liverpool ;   part  of  the  letter  was  as   follows : 

in  a  trial  for  the  murder  of  T.  A.,  declar-  Compare  the  cases  cited  in  W.,   §§    1432- 

ations  were  rejected  of  W.   A.,  shot  at  the  I434- 

same  time  with  T.  A.,  but  surviving  him  a  12 — Compare  the  authorities  cited  in  W., 

few  hours.  §§    1456-1475. 


No.  294.  2.  STATEMENT  OF  FACTS  AGAINST  INTEREST.  277 

"James  Smith,  Esq.,  London.  April  5,  1864.  Dear  Sir, — I  enclose  four 
private  letters,  also  two  drafts  of  Cuming  Brothers.  .  .  Draft  of  John 
Blakey  [the  defendant]  which  he  sent  to-day,  with  three  huge  cases,  to 
the  office.  I  enclose  his  invoices  for  your  perusal.  He;  leaves  shipment 
of  his  goods  to  your  judgment.  I  have  a  sample  pair  of  each  descrip- 
tion here,  which  we  can  send  out  by  first  ship,  and  keep  the  goods  for 
the  'Lady  Palmerston,'  which  vessel  arrived  yesterday  from  Glasgow, 
.  .  .  Yours,  &c.,  Geo.  C.  Barker." 

, Blackburn,  J.:  '"The  first  question  is,  Was  the  letter  of  the  5th  of 
April,  1864,  written  by  Barker  to  the  plaintiffs,  admissible?  ...  Of 
course,  as  long  as  Barker  lived  this  letter  would  not  have  been  evidence, 
and  he  must  have  been  himself  called  as  a  witness;  but  Barker  is  dead, 
and  it  was  sought  to  make  the  letter  admissible,  as  coming  within  the 
class  of  cases  in  which  statements,  whereby  a  deceased  person  has 
charged  himself  or  discharged  another  from  the  payment  of  money,  have 
been  admitted.  And  no  doubt  when  entries  are  against  the  pecuniary 
interest  of  the  person  making  them,  and  never  could  be  made  available 
for  the  person  himself,  there  is  such  a  probability  of  their  truth  that 
such  statements  have  been  admitted  after  the  death  of  the  person  making 
them,  as  evidence  against  third  persons,  not  merely  of  the  precise  fact 
which  is  against  interest,  but  of  all  matters  involved  in  or  knit  up  with 
the  statement;  as  in  Higham  v.  Ridgway  (10  East,  109),  where  the 
entry  of  a  man  midwife  that  he  had  delivered  the  wife  of  a  certain  man 
of  a  son  on  a  particular  day,  coupled  with  the  charges  which  were 
marked  as  paid,  was  held  admissible  to  prove  the  date  of  the  birth  of  a 
person  who  had  suffered  a  recovery,  showing  that  he  was  not  of  age  at 
the  time.  The  present  statement  is  contained  in  a  letter  which  acknowl- 
edges the  receipt  of  'three  huge  cases,'  and  if  this  acknowledgment  is 
receivable  in  eivdence  as  against  interest,  then  the  rest  of  the  letter  ex- 
planatory of  the  transaction  under  which  the  cases  were  received  would 
also  be  evidence.  But  the  authorities  show,  as  was  said  in  the  Sussex 
Peerage  Case,  11  CI.  &  F.  85,  that  the  declaration  must  be  against  pecu- 
niary interest,  or,  what  is  much  the  same  thing,  against  proprietary  inter- 
est, as  when  a  deceased  occupier  of  land  admitted  that  he  held  as  tenant 
of  another,  thus  cutting  down  his  prima  facie  title  in  fee.  In  the  pres- 
ent case  all  the  admission  by  Barker  that  can  be  said  to  be  against  in- 
terest amounts  to  no  more  than  an  admission  that  he  has  the  care  of 
thef  three  chests  which  have  arrived  at  the  office,  and  the  possibility  that 
this  statement  might  make  him  liable  in  the  case  of  their  being  lost  is 
an  interest  of  too  remote  a  nature  to  make  the  statement  admissible  in 
evidence."^ 

I — Eric,    J.,    in  Papendick  v.  Bridgetcater,  must  be  limited.  .  .  .  The  argument  in  sup- 

S    E.   &   B.    180    (1855):      "It   is  contended  port   of   the    evidence   has  almost   gone   the 

that    there    is    a    wide    and    universal    prin-  length     of    asserting    that    the    declaration 

ciple    that    the    declaration    of   a    dead    per-  becomes  admissible  where  any  hope  or  fear 

son,    made    against    his    interest,    is    admis-  might  have  prompted  a  contrary  assertion; 

sible.      No   doubt  many  judges  do  use  that  but    it    was    admitted    that    the    rule    could 

language;    but    I    think    that    the    principle  not    go    so    far;    and    in    the    case    in    the 


278 


HEARSAY    rule:     (b)    EXCEPTIONS. 


No.  295. 


3.  STATEMENTS  ABOUT  FAMILY  HISTORY  (PEDIGREE.) 

VOWLES  V.  YOUNG    (i8o6). 
IS  Ves.  140. 

The  issue  being  one  of  heirship,  on  a  bill  to  redeem,  the  judge  at  the 
trial  below  had  rejected  the  testimony  of  Thomas  Roberts  that  he  had 
heard  Samuel  Noble,  the  husband  of  Mary  Noble,  say  she  was 
2^^      illegitimate. 

Erskine,  L.  C.  :  "Courts  of  law  are  obliged  in  cases  of  this  kind  to 
depart  from  the  ordinary  rules  of  evidence,  as  it  would  be  impossible  to 
establish  descents  according  to  the  strict  rules  by  which  contracts  are 
established,  and  subjects  of  property  regulated;  requiring  the  facts  from 
the  mouth  of  the  witness  who  has  the  knowledge  of  them.  In  cases  of 
pedigree  therefore  recourse  is  had  to  a  secondary  sort  of  evidence, — the 
best  the  nature  of  the  subject  will  admit,  establishing  the  descent  from 
the  only  sources  that  can  be  had.  ...  If  the,  declaration  of  the  husband 
is  not  to  be  received  to  prove  the  legitimacy  or  illegitimacy  of  his  wife, 
as  a  distant  relation  might,  which  seems  to  be  contended,  the  extent  of 
that  proposition  must  be  considered.  Suppose  the  question  were  whether 
she  was  the  daughter  of  A.  or  B.,  his  evidence  might  equally  be  rejected 
upon  the  question  whether  she  descended  from  one  stock  or  another; 
yet,  as  far  as  hearsay  is  evidence  of  anything  within  the  knowledge  of 
a  man,  no  man  can  be  supposed  ignorant  of  the  reputation  of  the  descent 
of  his  wife;  and  the  law,  admitting  probability  upon  such  a  subject, 
always  receives  reputation  of  descent.  .  .  .  Upon  questions  of  pedigree, 
inscriptions  upon  tombstones  are  admitted,  as  it  must  be  supposed  the 
relations  of  the  family  would  not  permit  an  inscription  without  founda- 


House  of  Lords  ...  it  was  said  that  the 
interest,  to  make  the  declaration  admis- 
sible, must  be  either  pecuniary  or  pro- 
prietary." 

Dillon,  J.,  in  Mahaska  Co.  v.  Ingalls,  16 
la.  81  (1864):  "From  the  unbroken  cur- 
rent of  English  and  the  decided  prepond- 
erance of  American  authority,  we  think  the 
present  state  of  the  law  is,  that  verbal 
declarations  are  receivable,  when  accom- 
panied by  the  following  prerequisites:  ist. 
The  declarant  must  be  dead.  To  this  we 
believe  the  English  cases  make  no  excep- 
tion. Mere  absence  from  the  jurisdiction 
will  not  answer;  although  by  the  course 
of  decisions  in  some  of  the  States,  with 
reference  to  written  entries,  &c.,  absence 
might  possibly  be  treated  as  equivalent  to 
death.  As,  in  the  case  at  bar,  the  declar- 
ant was  deceased,  we  need  not  decide 
whether  death  is,  in  all  cases,  an  indis- 
pensable condition.     We  need  only  say,  that 


probably  the  courts  would  not  be  inclined 
to  relax  the  rule  so  as  to  dispense  with 
this  condition,  unless  it  might  be  in  the 
case  of  confirmed  insanity.  2d.  The 
ne.xt  prerequisite  is,  that  the  declaration 
must  have  been  against  the  interest  of  the 
declarant  at  the  time,  and  that  interest 
must  be  a  pecuniary  one.  That  it  would 
have  subjected  the  party  to  penal  conse- 
quences is  not  sufficient,  although  this 
would  add  to  the  weight  of  the  testimony. 
The  conflict  of  the  declaration  with  the 
pecuniary  interest  of  the  party,  must  be 
clear  and  undoubted,  as  this  is  the  main 
ground  upon  which  the  admissibility  of  this 
species  of  evidence  rests.  3d.  The  dec- 
laration must  be  of  a  fact  or  facts  in  rela- 
tion to  a  matter  concerning  which  the 
declarant  was  immediately  and  personally 
cognizable." 

Compare    the    authorities    cited    in    W., 
§§    1461-1476. 


No.  296.  3.   FAMILY   HISTORY.  279 

tion  to  remain.  So  engravings  upon  rings  are  admitted,  upon  the  pre- 
sumption that  a  person  would  not  wear  a  ring  with  an  error  upon  it. — 
I  take  this  question  with  the  quahfication  that  has  been  stated,  not 
whether  the  husband  had  heard  the  fact  from  any  of  his  wife's  relations, 
but  whether  he  knew  it;  viz.  whether  he  had  such  knowledge  as  is  nec- 
essary to  establish  that  kind  of  fact."^ 


REX  V.  ERITH  (1807). 
8  East  539. 

Pauper  settlement,  the  issue  being  to  the  town  in  which  the  pauper 
was  domiciled.  The  respondents,  in  support  of  their  case,  examined 
the  pauper,  W.  Harris ;  who  stated  that  about  twenty  years  ago, 
being  then  about  fourteen  years  old,  he  remembered  being  at 
Erith  with  his  father  from  the  month  of  June  to  the  Michaelmas  follow- 
ing ;  that  they  lived  in  a  barn,  having  no  fixed  residence,  but  travelling 
the  country  from  place  to  place ;  that  he  remembered  being  at  other 
places  before  this  sojourning  at  Erith ;  and  that  his  father,  who  was 
now  dead,  had  told  him  that  he  (the  pauper)  was  born  a  bastard  at 
Erith,  and  had  pointed  to  that  place  as  they  were  passing;  telling  him 
that  that  was  the  place  of  his  (the  pauper's)  birth. 

Ellenborough,  L.  C.  J.,  (rejecting  this  declaration)  :  "The  only 
doubt  which  has  been  introduced  into  this  case  has  arisen  from  im- 
properly considering  it  as  a  question  of  pedigree.  The  controversy 
was  not,  as  in  a  case  of  pedigree,  from  what  parents  the  child  has  de- 
rived its  birth ;  but  in  what  place  an  undisputed  birth,  derived  from 
known  and  acknowledged  persons,  has  happened.  The  point  thus  stated 
turns  on  a  single  fact,  involving  no  question  but  of  locality,  and  there- 
fore not  falling  within  the  principles  of  or  governed  by  the  rules  ap- 
plicable to  cases  of  pedigree."^ 

2 — Eldon,  L.  C,  in  Whitelocke  v.  Baker,  there   be   Us   mota,    or   anything   which    has 

13  Ves.  514  (1807):  "It  was  not  the  opinion  precisely    the    same    effect    upon    a    person's 

of   Lord    Mansfield,    or   of   any   Judge,   that  mind    with    litis    contestatio,    that    person's 

tradition,   generally,  is  evidence  even  of  pedi-  declaration   ceases   to   be   admissible   in   evi- 

gree;    the   tradition    must   be    from    persons  dence.      It   is   no   longer   what   Lord   Eldon 

having    such    a    connection    with    the    party  calls  a  natural  effusion  of  the  mind.     It  is 

to   whom    it   relates   that   it   is   natural   and  subject  to  a  strong  suspicion  that  the  party 

likely,    from    their     domestic      habits     and  was  in  the  act  of  making  evidence  for  him- 

conncctions,     that    they    are    speaking    the  self.      If  he  be  in  such  circumstances  that 

truth,    and    that    they    could    not    be    mis-  what    he    says    is    said,    not    because    it    is 

taken.     .     .     .     Declarations     in     the     fam-  true,  not  because  he  believes  it,  but  because 

ily,   descriptions   in    wills,   descriptions  upon  he   feels   it   to   be   profitable   or   that   it   may 

monuments,  descriptions  in  Hibles  and  Reg-  hereafter   become   evidence   for   him   or   for 

istry    Books,    all    are    admitted    upon    the  those    in    whom    he    takes  an   interest  after 

principle    that    they    are    the    natural    effu-  his     death,     it     is     excluded.     .     .     .     The 

sions  of  a  party  who  must  know  the  truth,  question  then  always  will  be,     .     .     .     Was 

and  who  speaks  upon  an  occasion  when  his  the    evidence    in     the     particular      circum- 

mind   stands    in    an    even    position,    without  stances   manufactured,   or   was    it  spontane- 

any  temptation   to   exceed   or    fall   short   of  ous  and   natural?" 
the  truth."  Compare    the    authorities    cited     in    W., 

Brougham,   L.    C,   in   Monkton   v.   Attor-  §    1483. 
ney-General,  2  Russ.  &  M.  160  (1831):  "If  3 — Earl,   J.,    in    Eisenlord   v.    Clum,    126 


280 


HEARSAY    rule:     (b)     EXCEPTIONS. 


No.  297. 


SHIELDS  V.  BOUCHER    (1847). 

/  De  G.  &  Sm.  ^0 

In  an  issue  as  to  the  relationship  of  the  mother  of  one  of  the  plain- 
tiffs, the  Court  below  had  refused  to  receive  certain  declarations  of  the 
deceased  mother  as  to  the  place  that  she  and  her  family,  and  her 


297 

ried. 


father  and  mother,  came  from,  and  the  place  where  she  was  mar- 


Knight-Bruce,  V.  C. :  "For  such  a  purpose  is  there  a  solid  ground 
of  distinction  between  time  and  place?  There  may  be,  but  I  do  not 
distinctly  perceive  it.  ...  I  own  myself  not  convinced  that  the  rea- 
sons and  grounds  (so  far  as  I  can  collect  and  understand  them)  upon 
which  births  and  times  of  births,  marriages,  deaths,  legitimacy,  ille- 
gitimacy, consanguinity  generally,  and  particular  degrees  of  consan- 
guinity and  of  affinity,  are  allowed  to  be  proved  by  hearsay  (from 
proper  quarters)  in  a  controversy  merely  genealogical,  are  not  as  appli- 
cable to  interrogatories  like  those  that  have  been  rejected  in  a  case  like 
the  present.  .  .  .  Who  generally  is  more  likely  to  know  whence  a 
man  or  a  family  came  than  the  man  or  the  family  ?  Does  the  emigrant, 
living  or  dying,  forget  his  native  soil?  Is  a  woman  less  likely  to  state 
her  country  than  her  age  with  accuracy?  ....  Nor  are  there, 
perhaps,  any  recollection  or  traditions  of  the  old  more  readily  com- 
municated or  more  acceptable  to  an  auditory  of  descendants  than  the 
original  seat  of  the  family,  its  former  residences  and  possessions,  its 
migrations,  its  local  and  other  distinctions  of  the  past,  its  advance- 
ment or  its  decay.  If  such  topics  are  not  strictly  genealogical,  they  are 
at  least  intimately  connected  with  genealogy  .  .  .  and  in  the  most 
striking  manner  with  the  reason  [of  the  rule]."* 


JOHNSON  V.  LAWSON  (1824). 
2  Bing.  86. 
The  question  for  the  jury  was,  whether  one  Francis  Lidgbird  (whose 
claim  the  plaintiff  supported)  or  Henry  Wilding   (whose  claim  the  de- 
fendant supported)  was  heir-at-law  to  Henry  Lidgbird,  who  died 


298 


seized   of  certain   lands   in   October,    1820,   and   was   the  son  of 


John  Lidgbird,  formerly  sheriff  of  Kent.     In  consequence  of  a  separa- 


N.  Y.  552,  27  N.  E.  1024  (1891):  "A  case 
is  not  necessarily  one  of  that  kind  [pedi- 
gree], because  it  may  involve  questions 
of  birth,  parentage,  age,  or  relationship. 
Where  these  questions  are  merely  inci- 
dental, and  the  judgment  will  simply  es- 
tablish a  debt,  or  a  person's  liability  on  a 
contract,  or  his  proper  settlement  as  a 
pauper,  and  things  of  that  nature,  the  case 
is  not  one  of  pedigree." 

Bigelow,    C.    J.,    in    North    Brook-Held    v. 
Warren,  i6  Gray  175  (i860);  admitting  evi- 


dential declarations  where  the  main  issue 
was  as  to  a  pauper's  settlement:  "Upon 
principle  we  can  see  no  reason  for  such 
a  limitation.  If  this  evidence  is  admissi- 
ble to  prove  such  facts  at  all,  it  is  equally 
so  in  all  cases  whenever  they  become  legit- 
imate subjects  of  judicial  inquiry  and  in- 
vestigation." 

Compare  the  authorities  cited  in  W.,  § 
1503- 

4 — Compare  the  authorities  cited  in  W., 
§§    1501-1502. 


No.  298.  3.   FAMILY   HISTORY.  281 

tion  having  taken  place  between  John  the  sheriff  and  his  wife,  their  son 
Henry  was  brought  up,  from  about  the  age  of  nine  months,  with  Miss 
Weller,  afterwards  Mrs.  HolHnworth,  till  he  went  to  college,  and  he 
spent  his  vacations  at  Mrs.  Hollinworth's  house:  John  Lidgbird,  the 
sheriff,  was  on  the  point  of  marriage  with  Mrs.  Hollinworth  (which 
was  prevented  by  his  son  Henry),  and  after  the  death  of  John,  Henry 
lived  with  Mrs.  Hollinworth  for  twenty-three  or  twenty-four  years,  and 
she  was  the  only  person  in  his  confidence ;  this  was  proved  by  Mrs. 
Lucretia  Pakenham,  niece  of  Mrs.  Hollinworth,  who  had  died  before 
the  trial.  On  the  part  of  the  plaintiff  it  was  proposed,  among  other 
evidence,  to  give  evidence  of  declarations  made  by  Mrs.  Hollinworth, 
as  to  Francis  Lidgbird  being  the  heir  of  Henry,  who  died  seized;  but 
the  learned  judge  refused  to  receive  such  evidence.  It  was  then  proved 
by  Mrs.  Elizabeth  Withers,  that  a  Mrs.  King  had  been  Henry  Lidg- 
bird's  housekeeper  for  twenty-four  years,  and  it  was  proposed  to  give 
evidence  of  declarations  by  Mrs.  King,  who  was  no  longer  living,  as 
to  Francis  Lidgbird  being  the  heir  to  Henry,  but  this  was  objected  to 
by  defendant's  counsel:  and  Mr.  Baron  Graham  rejected  it,  saying 
"that  it  seemed  to  him  to  be  carrying  the  principle  of  hearsay  evidence 
too  far;  De  Grey,  C.  J.,  having  laid  it  down,  that  it  must  be  confined 
to  persons  who  are  members  of  the  family." 

BuRROUGH,  J.:  "This  exception,  from  the  general  rule  that  hear- 
say shall  not  be  admitted,  must  be  construed  strictly;  and  the  natural 
limits  of  it  are  the  declarations  of  members  of  the  family.  If  we  go 
beyond,  where  are  we  to  stop?  Is  the  declaration  of  a  groom  to  be  ad- 
mitted? of  a  steward?  of  a  chambermaid?  of  a  nurse?  may  it  be  ad- 
mitted if  made  a  week  after  they  have  joined  the  family?  and  if  not, 
at  what  time  after?  We  should  have  to  try  in  every  case  the  life  and 
habits  of  the  party  who  made  the  declaration,  and  on  account  of  this 
uncertainty  such  evidence  must  be  excluded.  The  argument  for  the 
defendant  rests  on  here  and  there  a  loose  expression  from  a  judge,  and 
on  the  circumstance  that  there  is  no  case  in  which  such  evidence  is  re- 
ported to  have  been  excluded ;  but  before  we  can  admit  it,  we  must  be 
referred  to  some  case  to  warrant  its  admission.  We  have  heard  of  no 
such  case,  and  therefore  the  present  rule  must  be  discharged."^ 

5 — Robinson,    C.    J.,    in    Doe    v.    Auldjo,  and    after    fifty    years    parties    are    relieved 

5  U.    C.   Q.   B.    17s    (1848),  holding  admis-  from    the    necessity    of    attempting    to    ac- 

sible  testimony  from  a  member  of  the  fam-  count  for  him.     .     .     .     No  better  evidence 

ily  that  an  old  body-servant,  now  deceased,  would  be  required  than  the  account  brought 

had    returned    from    Africa   and    told    them  back  by  his   faithful   servant  to  his   family, 

of   the   death    there   of   his   master,   an    ex-  and  accredited  by  them  and  by  the  govern- 

plorer,  the  ancestor  in  question:   "There  is  ment    which    employed    him." 
therefore  no  improbability  in   the  servant's  Compare     the    authorities    cited    in    W., 

relation,    which    seems   to   have    been   cred-  §§    1487-1488, 
ited    at    the    time    and    ever    since     .     .     . 


282  HEARSAY  rule:   (b)   exceptions.  No.  299. 

MONKTON   V.  ATTORNEY-GENERAL    (1831). 
2  Russ.  &  M.  14/. 

Issue  as  to  the  next  of  kin  of  Samuel  Troutbeck;  the  main  question 
wa"  upon  the  Vice-Chancellor's  rejection  of  a  certain  genealogical  nar- 
rative and  pedigree  of  the  Troutbeck  family  in  the  handwriting 
*""      of  one  John   Troutbeck,   deceased,   purporting  that  the  writer's 
father  and  the  testator  were  first  cousins. 

Brougham,  L.  C.  :  "The  principal  point  in  dispute  was  the  relation- 
ship of  two  individuals  of  the  names  of  Samuel  and  George  Troutbeck. 
John  was  clearly  proved  to  have  been  related  to  one  of  those  two, 
namely,  to  George:  he  was  not  proved — and  that  was  as  much  in  dis- 
pute as  the  relationship  of  Samuel  and  George — he  was  not  proved 
to  have  been  related  to  the  family  of  Samuel;  and  this  documentary 
account  was  objected  to,  as  not  falling  within  the  rule  which  admits 
hearsay  or  declarations  of  deceased  persons  in  a  question  of  pedigree, 
because  (it  was  insisted)  you  must  first  give  evidence  dehors  the  declara- 
tions, to  connect  them  with  the  parties  respecting  whom  the  declara- 
tions are  to  be  tendered.  I  entirely  agree,  that  in  order  to  admit  hear- 
say evidence  in  pedigree,  you  must,  by  evidence  dehors  the  declarations, 
connect  the  person  making  them  with  the  family.  But  I  cannot  go  to 
the  length  of  holding,  that  you  must  prove  him  to  be  connected  with 
both  the  branches  of  the  family,  touching  which  his  declaration  is  ten- 
dered. That  he  is  connected  with  the  family  is  sufficient :  and  that  con- 
nection once  proved,  his  declarations  are  then  let  in  upon  questions 
touching  that  family.  .  .  .  It  is  not  more  true  that  things  which 
are  equal  to  the  same  thing  are  equal  to  one  another  than  that  persons 
related  by  blood  to  the  same  individual  are  more  or  less  related  to 
each  other."^ 


4.    ATTESTING  WITNESS. 
800  ADAM  v.  KERR  (1798). 

I  B.  &  P.  360. 
[Quoted  ante,  No.  ^d^."] 


5.     REGULAR  ENTRIES. 

a.    By  Parties  to  the  Cause. 

Statutes:    England,  7  James  I,  c.  12  (1609):    An   Act   to   Avoid 

the  Double  Payment  of  Debts.     "Whereas  divers  men  of  trades,  and 

handicraftsmen   keeping   shop-books,   do   demand   debts   of   their 

^"■*-       customers  upon  their  shop-books  long  time  after  the  same  hath 

been  due,  and  when  as  they  have  supposed  the  particulars  and  certainty 

6 — Compare  the  authorities  cited   in  W.,   §    1491- 


No.  301.  5.  REGULAR  ENTRIES.  283 

of  the  wares  delivered  to  be  forgotten,  then  either  they  themselves  or 
their  servants  have  inserted  into  their  said  shop-books  divers  other  wares 
supposed  to  be  delivered  to  the  same  parties,  or  to  their  use,  which  in 
truth  never  were  delivered,  and  this  of  purpose  to  increase  by  such  un- 
due means  the  said  debt;  (2)  and  whereas  divers  of  the  said  trades- 
men and  handicraftsmen,  having  received  all  the  just  debt  due  upon 
their  said  shop-books,  do  oftentimes  leave  the  same  books  uncrossed,  or 
any  way  discharged,  so  as  the  debtors,  their  executors  or  administra- 
tors, are  often  by  suit  of  law  enforced  to  pay  the  same  debts  again  to 
the  party  that  trusted  the  said  wares,  or  to  his  executors  or  adminis- 
trators, unless  he  or  they  can  produce  sufficient  proof  by  writing  or 
witnesses,  of  the  said  payment,  that  may  countervail  the  credit  of  the 
said  shop-books,  which  few  or  none  can  do  in  any  long  time  after  the 
said  payment;  (3)  Be  it  therefore  enacted  by  the  authority  of  this 
present  parliament,  that  no  tradesman  or  handicraftman  keeping  a 
shop-book  as  is  aforesaid,  his  or  their  executors  or  administrators, 
shall  after  the  feast  of  St.  Michael  the  archangel,  next  coming,  be 
allowed,  admitted,  or  received  to  give  his  shop-book  in  evidence  in 
any  action  for  any  money  due  for  wares  hereafter  to  be  delivered, 
or  for  work  hereafter  to  be  done,  above  one  year  before  the  same 
action  brought,  except  he  or  they,  their  executors  or  administrators, 
shall  have  obtained  or  gotten  a  bill  of  debt  or  obligation  of  the  debtor 
for  the  said  debt,  or  shall  have  brought  or  pursued  against  the  said 
debtor,  his  executors  or  administrators,  some  action  for  the  said  debt, 
wares,  or  work  done,  within  one  year  next  after  the  same  wares 
delivered,  money  due  for  wares  delivered,  or  work  done.  II.  Provided 
always,  that  this  act,  or  anything  therein  contained,  shall  not  extend 
to  any  intercourse  of  trafific,  merchandising,  buying,  selling,  or  other 
trading  or  dealing  for  wares  delivered  or  to  be  delivered,  money  due 
or  work  done  or  to  be  done,  between  merchant  and  merchant,  mer- 
chant and  tradesman,  or  between  tradesman  and  tradesman,  for  any- 
thing directly  falling  within  the  circuit  or  compass  of  their  mutual 
trades  and  merchandise,  but  that  for  such  things  only,  they  and  every 
of  them  shall  be  in  case  as  if  this  act  had  never  been  made;  anything 
herein  contained  to  the  contrary  thereof  notwithstanding.  III.  This 
act  to  continue  to  the  end  of  the  first  session  of  the  next  parliament 
and  no  longer."'' 

7 — Hardu'icke,   L.   C,   in   Glynn   v.   Bank  James  I.  there  was  an  opinion   growing  up 

■of  England,    2    Ves.    Sr.    38    (1750):    "The  that  after  a  certain  length  of  time  a  man's 

rule   is   that   a   man  cannot   make   evidence  own  shop-books  should  be  evidence  for  him 

for    himself.     .     .     .      [As    to]     tradesmen  after   the   year,   to   prevent   which   was  that 

and    shop-books,     .     .     .         [there    is]     no  Act   of    Parliament    made,    as   I    have   been 

instance,    where    entered    in    a    man's    own  informed,  by  Lord   Raymond  upon  consult- 

hand,    that    they   have   been    admitted    after  ing  him.     It  was  to  take  away  that  opinion, 

any    length    of    time    as    evidence.      At   the  that  after  the  year  that  might  be  evidence." 
time   of   making  the   Act  of   Parliament  of 


284 


HEARSAY    rule:     (b)     EXCEPTIONS. 


No.  302. 


Plymouth  Colony  Laws  ip6  (1682):  "Whereas  divers  merchants, 
shopkeepers,  tradesmen,  and  handicraftsmen,  have  traded,  sold  and 
trafficked  their  goods,  wares,  and  merchandise  to  divers  persons 
^""  in  private,  and  their  customers  often  sending  for  such  things 
as  they  need  by  children  and  servants  under  age,  &c.,  whereby  such 
merchants,  shopkeepers,  and  tradesmen  have  no  opportunity  to  take 
bonds,  bills,  or  witness  of  the  delivery  of  their  goods.  Yet  just  it  is 
that  such  dealers  should  be  duly  paid  for  their  wares  and  merchandise. 
It  is  therefore  enacted  that  all  and  every  merchant,  shopkeeper,  dealer, 
&c.,  shall  keep  a  book  of  their  dealing  and  trading,  fairly  writing  down 
therein  both  debt  and  credit,  and  the  said  merchants,  their  factors  or 
servants,  or  any  of  them  that  shall  deliver  any  such  wares  or  mer- 
chandise, making  oath  that  the  said  book  of  accounts  is  true  both  for 
debt  and  credit;  such  book  of  accounts  shall  be  held  sufficient  in  law 
for  the  recovery  of  any  debt  within  four  years  after  the  delivery  of 
any  such  goods;  but  if  the  defendant  will  take  his  oath  that  he  had 
not  those  goods  charged  in  the  book  or  account,  or  that  he  hath  paid 
for  the  same;  then  the  case  shall  be  tried  and  determined  according  to 
the  best  and  strongest  presumption  the  parties  concerned  shall  pro- 
duce."8 


EASTMAN  v.  MOULTON    (1825). 
3  N.  H.  156. 

Assumpsit;  in  proving  a  set-off  for  cloth  sold  to  the  plaintiff  the 
defendant  offered  his  book  of  accounts,  with  his  own  oath  to  the  cor- 
rectness of  the  items.  On  his  cross-examination,  it  appeared 
®*^'*  that  the  goods  were  delivered  not  to  the  plaintiff  himself,  but 
to  the  latter's  servants.    The  book  was  admitted  against  objection. 

Richardson,  C.  J. :  "It  has  long  been  the  settled  practice  in  this 
State,  to  permit  the  account  books  of  a  party,  supported  by  his  supple- 


8 — Swift,  C.  J.,  Treatise  on  Evidence,  8i 
(Connecticut,  1810):  "It  is  a  general  rule 
of  law  that  no  man  shall  be  a  witness  in 
his  own  case;  but  to  this  there  are  sundry 
exceptions,  in  civil  cases,  on  the  ground 
of  necessity.  1.  The  parties  are  admitted 
as  witnesses  in  actions  of  book  debt  by 
force  of  statute  (Statutes,  Day's  edition, 
loi).  This  provision  of  the  statute  is 
grounded  on  the  necessity  of  the  thing; 
for  in  many  instances,  it  would  be  very 
difficult  to  obtain  any  other,  or  better 
proof;  but  as  this  action  is  very  common, 
and  as  there  is  great  danger  in  allowing 
a  party  to  support  a  claim  by  his  own  oath, 
the  law  has  provided  every  possible  check 
and  guard  against  false  accounts,  and  has 
restrained  the  action  within  the  narrowest 
limits  possible.  It  is  confined  to  such  arti- 
cies  as   are   usually  charged  on   book;   and 


the  book  ought  to  be  kept  in  a  fair  and 
regular  manner,  and  the  articles  truly  en- 
tered at  the  time  of  the  delivery,  or  the 
performance  of  the  service,  so  as  to  be  con- 
sistent with  and  support  the  oath  of  the 
party;  for  the  book  is  to  be  considered  as 
the  essential  part  of  the  evidence,  and  the 
oath  of  the  party  ts  supplementary  to  it." 
D evens,  J.,  in  Pratt  v.  White,  132  Mass. 
477  (1882):  "It  has  been  sanctioned  as  an 
exception  to  the  general  rule  of  law,  as 
it  formerly  existed,  that  a  party  should 
not  be  a  witness  in  his  own  cause,  and 
from  supposed  necessity  in  order  to  pre- 
vent a  failure  of  justice,  that  he  shall  be 
allowed  to  produce  the  record  of  his  daily 
transactions,  to  many  of  which,  on  account 
of  their  variety  and  minuteness,  it  cannot 
be  expected   there   will  be  witnesses." 


No.  304,  5,  REGULAR  ENTRIES.  285 

mentary  oath,  to  go  to  the  jury,  as  evidence  of  the  deUvery  of  articles 
sold,  and  of  the  performance  of  work  and  labor.  But  as  this  is  in 
truth  the  admission  of  a  party  to  be  a  witness  in  his  own  cause,  the 
practice  is  confined  to  cases  where  it  may  be  presumed  there  is  no 
better  evidence,  and  has  many  limitations. 

"In  the  first  place,  it  must  appear  that  the  charges  are  in  the  hand- 
writing of  the  party  who  is  sworn;  because,  if  the  charges  are  in  the 
handwriting  of  a  third  person,  such  third  person  is  presumed  to  know 
the  facts,  and  may  be  a  witness;  so  that  there  is  no  necessity  of  admit- 
ting the  party  to  testify  in  his  own  cause.  The  book  is,  therefore, 
in  such  a  case,  rejected. 

"The  charges  in  the  handwriting  of  the  party  must  appear  in  such 
a  state,  that  they  may  be  presumed  to  have  been  his  daily  minutes 
of  his  transactions  and  business.  For  if  it  appear  in  any  way,  that 
many  charges,  purporting  to  be  made  at  different  dates,  were  in  fact 
made  at  the  same  time,  the  book  is  not  evidence.  The  charges  must 
appear  to  be  the  original  or  first  entries  of  the  party,  made  at  or  near 
the  time  of  the  transactions  to  be  proved;  and  if  the  contrary  appear, 
the  book  cannot  be  admitted  as  evidence. 

"There  must  be  no  fraudulent  appearances  upon  the  book,  such 
as  gross  alterations.  And  where  it  appears  by  post  marks,  or  other- 
wise, that  the  account  has  been  transferred  to  another  book,  such  other 
book  must  be  produced. 

"If  it  appear  by  the  book  itself,  or  by  the  examination  of  the  party, 
that  there  is  better  evidence,  the  book  cannot  go  to  the  jury  as  evi- 
dence. Thus,  if  an  article  be  charged  in  the  book  as  delivered  by  or 
to  a  third  person,  or  if  the  party  on  his  examination  admit  that  to  be 
the  fact,  the  book  is  not  evidence  of  the  delivery  of  such  article. 

"The  party,  when  called,  is  in  the  first  instance  permitted  to  state 
only,  that  the  book  produced  is  his  book  of  original  entries;  that  the 
charges  are  in  his  handwriting;  that  they  were  made  at  the  times 
they  purport  to  have  been  made,  and  at  or  near  the  time  of  the  de- 
livery of  the  articles,  or  of  the  performance  of  the  services.  He  may, 
however,  be  cross-examined  by  the  other  party.  .  .  .  [In]  the  case 
now  before  us,  as  soon  as  it  appeared  that  the  cloth  was  delivered  to 
a  third  person,  the  book  became  incompetent  evidence  to  prove  the 
delivery  of  that  article;  and  the  jury  ought  to  have  been  so  instructed."^ 


SMITH  v.  RENTZ    (1892). 
/J/  N.  Y.  i6(). 
Action  for  a  balance  due  to  the  plaintiff's  testator,  who  had  acted 
as  the  banker  and  business  agent  of  the  defendant  and  had  paid  taxes 
and  other  bills  for  her.    On  the  trial  before  a  referee  the  plaintiff 
offered  in  evidence  the  ledger  kept  by  the  testator  containing  the 
items  of  the  alleged  account.   It  was  admitted  against  the  objection  of  the 
defendant. 

0 — Compare  the  authorities  cited  in  W.,  §§    1540-1544. 


286 


HEARSAY    rule:     (b)     EXCEPTIONS. 


No.  304. 


Andrews,  J. :  "If  the  ledger  was  improperly  admitted  in  evidence 
the  judgment  must  be  reversed.  .  .  .  The  claim  is  also  made  that  the 
books  were  competent  as  original  evidence  of  the  entries  under  the 
rule  making  books  of  account  in  certain  cases  evidence  in  favor  of 
the  party  keeping  them.  We  think  there  is  no  foundation  for  this  con- 
tention. The  rule  which  prevails  in  this  State  (adopted,  it  is  said, 
from  the  law  of  Holland),  that  the  books  of  a  tradesman  or  other 
person  engaged  in  business  containing  items  of  account,  kept  in  the 
ordinary  course  of  book-accounts,  are  admissible  in  favor  of  the  person 
keeping  them,  against  the  party  against  whom  the  charges  are  made, 
after  certain  preliminary  facts  are  shown,  has  no  application  to  the 
case  of  books  or  entries  relating  to  cash  items  or  dealings  between 
the  parties.  This  qualification  of  the  rule  was  recognized  in  the 
earliest  decisions  in  this  State,  and  has  been  maintained  by  the  courts 
with  general  uniformity:  Vosburgh  v.  Thayer  (12  Johns.  461).  It 
stands  upon  clear  reason.  The  rule  admitting  account  books  of  a  party 
in  his  own  favor,  in  any  case,  was  a  departure  from  the  ordinary  rules 
of  evidence.  It  was  founded  upon  a  supposed  necessity,  and  was  in- 
tended for  cases  of  small  traders  who  kept  no  clerks,  and  was  con- 
fined to  transactions  in  the  ordinary  course  of  buying  and  selling  or 
the  rendition  of  services.  In  these  cases  some  protection  against  fraudu- 
lent entries  is  afforded  in  the  publicity  which  to  a  greater  or  less 
extent  attends  the  manual  transfer  of  tangible  articles  of  property  or 
the  rendition  of  services,  and  the  knowledge  which  third  persons  may 
have  of  the  transactions  to  which  the  entries  relate.  But  the  same 
necessity  does  not  exist  in  respect  to  cash  transactions.  They  are 
usually  evidenced  by  notes  or  writing  or  vouchers  in  the  hands  of  the 
party  paying  or  advancing  the  money.  Moreover,  entries  of  cash 
transactions  could  be  fabricated  with  much  greater  safety,  and  with 
less  chance  of  the  fraud  being  discovered,  than  entries  of  goods  sold 
and  delivered  or  the  services  rendered.  It  would  be  unwise  to  extend 
the  operation  of  the  rule  admitting  a  party's  books  in  evidence  beyond 
its  present  limits,  as  would  be  the  case,  we  think,  if  books  containing 
cash  dealings  were  held  to  be  competent.  Parties  are  now  competent 
witnesses  in  their  own  behalf.  A  resort  to  books  of  account  is  thereby 
rendered  unnecessary  in  the  majority  of  cases.  We  think  the  ledger 
was  erroneously  admitted  in  evidence. "^° 


10 — Lumpkin,  J.,  in  Ganahl  v.  Shore,  24 
Ga.  24  (1858):  "In  the  nature  of  things 
no  such  principle  can  be  maintained 
[as  the  inadmissibility  of  cash  entries] . 
.  .  .  The  business  of  banking  is  con- 
fined almost  entirely  to  money  items;  so 
of  the  books  of  factors  and  commission 
merchants;  so  of  brokers.  Large  pecuniary 
advances  are  made  by  commission  houses 
to  planters,  in  anticipation  of  crops;  the 
customer  sends  an  order  for  a  thousand 
dollars;  it  is  forwarded  and  charged  to  the 


planter's  account;  true,  the  factor  has  the 
written  order,  but  the  cash  advanced  de- 
pends upon  the  evidence  of  his  books. 
Whatever  doctrine  may  have  obtained  for- 
merly upon  this  subject,  the  world  is  too 
much  in  a  whirl,  there  is  too  much  to  be 
done  in  the  twenty-four  hours  now,  to 
allow  of  the  particularity  and  consequent 
delay  in  the  obtaining  of  receipts,  etc. 
.  .  .  He  that  so  affirms  [the  rejection 
of  money  items]  is  half  a  century  behind 
the  age  in   which   he   lives;    and  to   get  up 


No.  305.  5.  REGULAR  ENTRIES.  287 

CONKLIN  V   STAMLER    (1859). 
8  Abb.  Pr.  400. 

The  only  proof  made  in  the  court  below,  was  that  the  plaintiff  had 
no  clerk  or  book-keeper,  and  that  persons  dealing  with  him  had  settled 

with  him  by  his  books. 
^^^  Daly,    F.    J.:    "In    Morrill    o.    Whitehead    (4   E.    D.    Smith. 

239),  it  was  proved  that  the  books  produced  were  the  account-books 
of  the  party;  that  he  had  no  clerk,  and  that  he  kept  fair  and  honest 
accounts ;  but  as  there  was  no  proof  that  any  one  of  the  services  entered 
in  the  book  had  been  actually  rendered,  we  reversed  the  judgment.  This 
is  the  first  case  in  this  State  that  has  gone,  I  think,  that  length,  or  in 
which  it  was  distinctly  determined  that  some  of  the  articles,  or  services 
charged  in  the  account  must  be  shown  to  have  been  actually  delivered 
or  rendered ;  though  it  has  been  frequently  intimated  that  that  proof 
was  essential  before  the  books  could  be  received  or  used  in  evi- 
dence. (Vosburgh  c.  Thayer,  12  Johns.,  461 ;  Sickles  a.  Mather,  20 
Wend.,  76;  Foster  a.  Coleman,  i  E.  D.  Smith,  86.)  The  decision  in 
Morrill  a.  Whitehead  is  decisive  in  the  present  case,  as  the  only  proof 
before  the  justice  here  was  that  the  plaintiff  had  no  clerk,  and  that  per- 
sons who  had  dealt  with  him  and  had  settled  by  his  books  had  found 
them  to  be  correct. 

"But  even  if  this  proof  had  been  supplied,  I  am  of  opinion  that 
it  would  not  now  be  sufficient  to  authorize  a  judgment.  The  practice 
of  allowing  the  party's  books  of  accounts  to  be  received  as  sufficient 
evidence  of  the  existence  of  the  debt,  which  was  contrary  to  the  English 
rule,  came  into  use  in  this  State  and  in  New  Jersey  with  the  early 
Dutch  colonists,  in  whose  courts  merchants  and  traders  were  always 
allowed  to  exhibit  their  books  of  accounts,  where  it  was  acknowledged 
or  proved  that  there  had  been  a  dealing  between  the  parties, — provided 
the  books  had  been  regularly  kept,  with  the  proper  distinction  of  per- 
sons, things,  year,  month,  and  day.  Full  faith  and  credit  were  then 
given  to  them,  especially  where  they  were  strengthened  by  the  oath 
of  the  party,  or  where  the  creditor  was  dead.  And  the  practice,  long 
established  in  the  Eastern  States,  of  receiving  such  books  as  evidence, 
is  presumed  to  have  been  introduced  by  the  English  colonists  from  Hol- 
land, who  settled  New  England.  In  the  Dutch  colonial  courts,  the  par- 
ties appeared  before  the  court  and  made  their  own  statement,  and  if 
they  differed  as  to  a  fact  which  the  Court  thought  material,  either 
party  might  be  put  to  his  oath;  so  that  the  objection  made  to  this 
species  of  evidence  was,  in  these  tribunals,  of  less  force,  as  the  party 
who  made  the  entries  could  be  interrogated  in  respect  to  the  truth  or 
correctness  of  each  item.     In  New  England,  they  very  wisely  retained 

with  it,  he  must  forget  the  things  that  are  Compare    the    authorities    cited    in    W., 

behind,  and  press  forward,  for  it  will  never        §§   iS39-iS49- 
stop  or  come   back  to   hira." 


288 


HEARSAY    rule:     (b)     EXCEPTIONS. 


No.  305. 


the  feature  of  the  suppletory  oath  of  the  party  substantiating  the  truth 
of  the  entries,  in  connection  with  the  practice  of  allowing  such  books 
as  evidence;  and  where  the  matter  is  not  regulated  by  statute,  which 
is  the  case  in  Maine  and  Rhode  Island,  long  usage  has  established  that 
the  books  of  account  must  be  supported  by  the  oath  of  the  party. 

"In  Case  a.  Porter  (8  Johns.,  211),  the  practice  of  allowing  the 
entries  of  the  parties  made  in  the  usual  course  of  business  to  be  re- 
ceived as  evidence,  was  recognized  as  a  usage  established  in  the  courts 
of  this  State.  ...  In  Vosburgh  a.  Thayer  (12  Johns.,  465),  when  the 
Court  divided,  Platt,  J.,  delivered  a  long  opinion,  declaring  that  it 
was  repugnant  to  the  common  law.  .  .  .  But  the  other  members  of  the 
Court,  in  an  opinion  per  curiam,  thought  that  the  usage  and  necessity 
of  admitting  such  proof  had  been  too  long  sanctioned  and  felt  in  our 
courts,  and  that  it  was  then  too  late  to  question  its  admissibility.  But 
instead  of  simply  recognizing  the  practice  as  it  had  prevailed  in  the 
Dutch  tribunals,  and  declaring  that  the  party  should  or  could  be  ex- 
amined under  oath  as  to  the  truth  or  correctness  of  the  entries  made 
by  him,  they  devised,  as  a  test  and  safeguard,  the  special  preliminary 
proof,  which  has  since  been  required  as  a  condition  precedent  to  the 
admission  of  the  books, — influenced,  no  doubt,  by  what  was  said  by 
the  whole  court  in  the  former  case,  and  what  was  strongly  insisted 
upon  by  Judge  Platt  in  his  dissenting  opinion,  that  they  had  no  au- 
thority to  require,  and  could  not  admit  a  party  to  be  sworn  as  a  wit- 
ness. .  .  . 

"But  the  important  change  recently  made  in  the  law  of  this  State, 
by  which  a  party  may  testify  the  same  as  any  other  witness,  has  ob- 
viated the  difficulty  that  was  supposed  to  exist  when  the  rule  above 
referred  to  was  made,  and  there  is  now  no  occasion  for  resorting  to 
the  books,  unless  it  may  be  to  refresh  the  party's  memory  as  to  the 
items,  or  in  cases  where  there  is  a  failure  of  recollection.  In  the  latter 
case,  the  books,  if  they  contain  the  original  entries  of  the  transaction, 
would  still,  I  apprehend,  be  evidence  within  the  rule  recognized  in 
Merrill  o.  Ithaca  &  Oswego  Railroad  Company  (16  Wend.,  586)^^;  that 
is,  if  the  party  who  made  the  entries  had  entirely  forgotten  the  facts 
which  he  recorded,  but  can  swear  that  he  would  not  have  entered  them 
if  he  had  not  known  them  at  the  time  to  be  true,  and  that  he  believes 
them  to  be  correct.  But  I  agree  with  Judge  Brady,  that  the  books, 
except  in  the  cases  above  put,  can  no  longer  be  received  as  sufficient 
evidence  of  the  sale  and  delivery  of  goods,  or  of  the  performance  of 
services,  by  merely  proving  the  preliminary  facts  which  heretofore 
made  them  sufficient  evidence;  but  that  the  party,  if  he  had  no  other 
means  of  establishing  the  facts,  must  go  upon  the  stand  as  a  witness, 
resorting  to  his  books  only  where  it  is  necessary  to  refresh  his  memory 
as  to  the  items,  or  where,  from  a  failure  of  recollection,  he  is  com- 
pelled  to  rely   upon  them   alone,   and   can  swear  to  what   is  required 

II — This   is  the  rule   for  a  memorandum   of    recollection,    ante,    Nos.    89-92. 


No.  306.  5.  REGULAR  ENTRIES.  289 

to  warrant  their  introduction  as  evidence  to  be  submitted  to  the  tribunal 
that  is  to  pass  upon  the  facts."^^ 


Statutes:  Georgia,  Code  1895,  §5182:  "The  books  of  account 
of  any  merchant,  shopkeeper,  physician,  blacksmith,  or  other  person 
doing  a  regular  business  and  keeping  daily  entries  thereof,  may 
^  be  admitted  in  evidence  as  proof  of  such  accounts,  upon  the  fol- 
lowing conditions:  i.  That  he  kept  no  clerk,  or  else  the  clerk  is 
dead  or  otherwise  inaccessible,  or  for  any  other  reason  the  clerk  is 
disqualified  from  testifying;  2.  Upon  proof  (the  party's  oath  being 
sufficient)'  that  the  book  tendered  is  his  book  of  original  entries;  3. 
Upon  proof  (by  his  customers)  that  he  usually  kept  correct  books; 
4.  Upon  inspection  by  the  Court,  to  see  if  the  books  are  free  from  any 
suspicion  of  -  fraud." 

Illinois,  Rev.  St.  1874,  c.  51,  §3:  "Where  in  any  civil  action,  suit, 
or  proceeding,  the  claim  or  defense  is  founded  on  a  book  account,  any 
party  or  interested  person  may  testify  to  his  account-book,  and  the 
items  therein  contained;  that  the  same  is  a  book  of  original  entries, 
and  that  the  entries  therein  were  made  by  himself,  and  are  true  and 
just;  or  that  the  same  were  made  by  a  deceased  person,  or  by  a  dis- 
interested person,  a  non-resident  of  the  State  at  the  time  of  the  trial, 
and  were  made  by  such  deceased  or  disinterested  person  in  the  usual 
course  of  trade,  and  of  his  duty  or  employment  to  the  party  so  testi- 
fying; and  thereupon  the  said  account-book  and  entries  shall  be  ad- 
mitted as  evidence  in  the  cause." 

lozva,  Code  1897,  §  4622 :  "The  entries  and  other  writings  of  a 
decedent,  made  at  or  near  the  time  of  the  transaction  and  in  a  position 
to  know  the  facts  stated  therein,  may  be  read  as  prima  facie  evidence 
of  the  facts  stated  therein,  ...  2,  when  it  [the  entry]  was  made  in 
a  professional  capacity,  or  in  the  ordinary  course  of  professional  con- 
duct ;  3,  when  it  was  made  in  the  performance  of  a  duty  specially  en- 
joined by  law."  lb.  §  4623:  "Books  of  account,  containing  charges 
by  one  party  against  another,  made  in  the  ordinary  course  of  business, 
are  receivable  in  evidence  only  under  the  following  circumstances, 
.  .  .  First,  the  books  must  show  a  continuous  dealing  with  persons 
generally,  or  several  items  of  charges  at  different  times  against  the 
other  party  in  the  same  book  or  set  of  books ;  Second,  it  must  be  shown, 
by  the  party's  oath  or  otherwise,  that  they  are  his  books  of  original 
entries ;  Third,  it  must  be  shown  in  like  manner  that  the  charges  were 
made  at  or  near  the  time  of  the  transaction  therein  entered,  unless 
satisfactory  reasons  appear  for  not  making  such  proof;  Fourth,  the 
charges  must  also  be  verified  by  the  party  or  the  clerk  who  made  the 
entries,  to  the  effect  that  they  believe  them  ju-^t  and  true,  or  a  sufficient 
reason  must  be  given  why  the  verification  is  not  made."  . 

12 — Compare  the  authorities  cited  in  W.,  §    1560. 


290 


HEARSAY   rule:    (b)'   EXCEPTIONS. 


No.  307. 


S'      {^)     By   Third  Persons. 

PRICE  V.  EARL  OF  TORRINGTON    (1703). 

2  Ld.  Raym.  8/3. 

"In  indebitatus  assumpsit  for  beer  sold  and  delivered  to  the  defend- 
ant, upon  non  assumpsit  pleaded,  at  the  trial  at  Guildhall  before  Holt, 
Chief  Justice,  the  evidence  against  the  defendant  vv^as,  that  the 
**^*  usual  way  of  the  plaintiff's  trading  was,  that  the  drayman  came 
every  night  to  the  plaintiff's  clerk,  and  gave  account  to  him  of  all 
the  beer  that  he  had  delivered  that  day;  and  an  entry  was  made  of 
it  in  a  book,  which  the  drayman  and  clerk  subscribed;  and  that  there 
was  such  an  entry  of  barrels  of  beer  delivered  to  the  de- 
fendant, &c.,  and  that  the  drayman  was  dead,  and  the  subscription 
was  proved  to  be  of  his  writing.  And  Holt,  Chief  Justice,  held  this 
g^ood  evidence  to  charge  the  defendant.  And  a  verdict  was  givea 
against  him,  &c." 


POOLE  v.  DICAS    (1835). 

J  Bing.  N.  C.  64Q. 

In  an  action  on  a  bill  of  exchange  drawn  by  the  defendant,  accepted 
by  Wheeler,  and  indorsed  by  the  defendant  to  the  plaintiff,  a  notary's 
clerk  stated  at  the  trial,  that  when  the  bill  became  due  on  Satur- 
^"^  day,  the  8th  of  June,  1833,  it  was  left  by  the  plaintiff  with  the 
notary,  to  demand  payment.  A  copy  of  the  bill  was  made  in  a  book 
kept  by  the  notary  for  that  purpose,  and  Manning,  one  of  his  clerks, 
now  dead,  went  out  about  seven  in  the  evening  to  demand  payment 
of  the  acceptor;  in  a  short  time  Manning  returned,  and  in  the  margin 
of  the  book  containing  the  copy  of  the  bill,  wrote  by  the  side  of  the 
copy  of  the  bill,  "no  effects."  This  entry  was  produced  at  the  trial, 
and  proved  to  be  in  Manning's  handwriting.  Kelly  and  Humfrey, 
for  the  defendant,  contended  that  an  entry  such  as  the  present  "is  to 
be  received  in  two  cases  only;  first,  where  it  is  an  admission  against 
the  interest  of  a  deceased  party  who  makes  it;  and,  secondly,  where 
it  is  one  of  a  chain  or  combination  of  facts,  and  the  proof  of  one  raises 
a  presumption  that  another  has  taken  place."^^ 


13 — Hardwicke,  L.  C,  in  Lefebure  v. 
Warden.  2  Ves.  Sr.  54  (1750):  "It  must 
be  admitted  that  by  the  rules  of  evidence 
no  entry  in  a  man's  own  books  by  himself 
can  be  evidence  for  himself  to  prove  his  de- 
mand. So  far  [nevertheless]  the  Courts 
of  justice  have  gone  (and  that  was  going 
8  good  way,  and  perhaps  broke  in  upon  the 


original  strict  rules  of  evidence),  that 
where  there  was  such  evidence  by  a  serv- 
ant known  in  transacting  the  business,  as 
in  a  goldsmith's  shop  by  a  cashier  or  book- 
keeper, such  entry,  supported  on  the  oath 
of  that  servant  that  he  used  to  make  entries 
from  time  to  time  and  that  he  made  them 
truly,  has  been  read.     Farther,  where  that 


No.  3(J9.  5.  REGULAR  ENTRIES.  291 

TiNDAL,  C.  J.:  "As  to  the  first  point,  which  is  of  considerable  im- 
portance, we  think  the  evidence  in  question  was  admissible;  and  we 
think  it  admissible  on  the  ground  that  it  was  an  entry  made  at  the 
time  of  the  transaction,  and  made  in  the  usual  course  and  routine 
of  business  by  a  person  who  had  no  interest  to  misstate  what  had 
occurred.  If  there  were  any  doubt  whether  it  were  made  at  the  time 
of  the  transaction,  the  case  ought  not  to  go  down  to  trial  again ;  but 
acording  to  my  impression  of  the  testimony  in  the  cause,  the  entry 
was  made  at  the  time.  ...  In  the  present  case,  it  was  the  duty  of  the 
notary's  clerk  to  present  bills  for  payment  on  the  evening  of  the  day 
when  the  payment  was  demandable.  After  going  out  with  the  bill 
for  the  purpose  of  presentment,  he  returns  and  makes  an  entry  in  the 
margin  of  the  book  in  which  a  copy  of  the  bill  had  been  made  upon 
its  being  left  at  the  notary's  for  the  purpose  of  presentment.  This 
was  all  in  the  ordinary  course  of  business.  The  clerk  had  no  interest 
to  make  a  false  entry ;  if  he  had  any  interest,  it  was  rather  to  make 
a  true  entry :  it  is  easier  to  state  what  is  true  than  what  is  false ;  the 
process  of  invention  implies  trouble,  in  such  a  case  unnecessarily  in- 
curred ;  and  a  false  entry  would  be  likely  to  bring  him  into  disgrace 
with  his  employer.  Again,  the  book  in  which  the  entry  was  made  was 
open  to  all  the  clerks  in  the  office,  so  that  an  entry  if  false  would  be 
exposed  to  speedy  discovery."^* 


SMITH  V.  BLAKEY    (1867). 
L.  R.  2  Q.  B.  332. 

The  facts  have  been  already  given  in  No.  294,  ante. 

Blackburn,  J. :  "Then  it  is  said,  if  not  a  statement  against  inter- 
est, the  letter  is  admissible  as  a  memorandum  made  in  the  course 
""^  of  business  and  in  the  discharge  of  a  duty  to  Barker's  principals. 
But  the  rule  as  to  the  admission  of  such  evidence  is  confined  strictly 
to  the  entry  of  the  particular  thing  which  it  is  the  duty  of  the  person 
to  do,  and  unlike  a  statement  against  interest,  does  not  extend  to  col- 
lateral matters,  however  closely  connected  with  that  thing.  A  strong 
instance  of  the  distinction  is  the  case  of  Chambers  v.   Bernasconi    (i 

servant,     agent,     or    bookkeeper    has    been  14 — Swayne,   J.,    in    Fennerstcin's    Cham- 

dead,    if    there    is    proof    that    he    was    the  pagne,  3  Wall.   149  (1865):  "The  rule  rests 

servant  or  agent  usually  employed  in  such  upon  the  consideration  that  the  entry,  other 

business,    was    intrusted   to   make   such    en-  writing,  or  parol  declaration  of  the  author, 

tries    by    his    master,    [and]     that    it    was  was   within    his    ordinary    business.     .     .     . 

the  course  of  trade, — on  proof  that  he  was  In   all    [the  cases]    he   has   full    knowledge, 

dead  and  that  it  was  his  handwriting,  such  no    motive    to    falsehood,    and    there    is    the 

entry   has   been    read    (which    was    Sir    Biby  strongest    improbability    of    untruth.      Safer 

Lake's  Case).     And  that   was   going  a  great  sanctions     rarely     surround     the     testimony 

■way;    for    there   it    might    be    objected    that  of  a  witness   examined   under  oath." 
such  entry  was  the  same  as  if  made  by  the  Compare    the    authorities    cited    in    W., 

master  himself;   yet  by   reason  of  the  diffi-  §§    1522-1527. 
culty     of    making    proof    in    cases    of    this 
kind,  the  Court  has  gone  so  far." 


292 


HEARSAY    rule:     (b)     EXCEPTIONS. 


No.  309. 


C.  M.  &  R.  347),  in  the  Exchequer  Chamber.  The  reason  of  the  dis- 
tinction is  not  at  first  sight  very  obvious ;  but  I  think  all  the  cases  show 
that  it  is  an  essential  fact  to  render  such  an  entry  admissible,  that  not 
only  it  should  have  been  made  in  the  due  discharge  of  the  business 
about  which  the  person  is  employed,  but  the  duty  must  be  to  do  the 
very  thing  to  which  the  entry  relates,  and  then  to  make  a  report  or 
record  of  it.  Thus  in  Price  v.  Earl  of  Torrington  ( i  Salk.  285 ;  2 
Ld.  Raym.  873),  it  was  the  duty  of  the  drayman  to  deliver  the  beer 
and  enter  it  in  the  book;  in  Poole  v.  Dicas  (i  Bign.  N.  C.  649),  it 
was  the  duty  of  the  clerk  to  present  the  bill  and  make  an  entry  of  the 
dishonor;  and  in  Doe  v.  Turford  (3  B.  &  Ad.  890,  896-898),  it  was 
the  duty  of  the  person  to  serve  the  particular  notice  and  make  an  in- 
dorsement of  the  service.  In  the  last  case  Parke,  J.,  points  out  that  an 
entry  in  the  course  of  business  to  be  admissible  must  be  made  at  the 
very  time  of  the  transaction,  whereas  an  entry  against  interest  may  be 
made  at  any  time;  and  this  explains  the  distinction:  if  the  nature  of 
the  duty  must  be  to  do  a  particular  act  and  make  a  record  of  it  at 
once,  the  time  at  which  the  entry  is  made  is  of  great  consequence,  and 
goes  to  the  essence  of  the  admissibility,  which  is  confined  to  the  matters 
which  it  is  the  duty  to  record.  It  at  once  follows  that  the  present  state- 
ment was  not  admissible,  and  ought  not  to  have  been  received."^^ 


KENNEDY  v.  DOYLE    (1865). 

10  All.  161. 

The   facts   are  stated  in  a  prior  part  of  the  opinion,   quoted  post. 
No.  325. 

Gray,  J. :  "It  becomes  necessary,  therefore,  to  determine 
*-*^"  whether  his  death  has  made  his  register  competent  evidence  [as 
a  book  of  regular  entries].  The  leading  cases  upon  this  subject  are 
those  in  which  Lord  Holt  held  that  entries,  made  in  a  tradesman's 
books  by  his  servant  or  drayman  in  the  usual  course  of  his  employ- 
ment, were  admissible  in  evidence  after  the  death  of  the  latter,  upon 
proof  of  his  handwriting.  Pitman  v.  Maddox  (2  Salk.  690;  s.  c.  i  Ld. 
Raym,  732;  Holt,  298);  Price  v.  Torrington  (i  Salk.  285;  s.  c.  2  Ld. 
Raym.  873;  Holt,  300).  .  .  .  Lord  Chancellor  Plunket  repeatedly  ad- 
mitted the  books  of  a  Roman  Catholic  chapel  in  Dublin,  made  by 
Roman  Catholic  priests  whose  deaths  and  handwriting  were  proved, 
as  evidence  of  marriages  and  baptisms,  and  on  the  last  occasion,  after 
argument,  gave  this  reason  for  their  admission :  'They  are  the  entries 
of  deceased  persons,  made  in  the  exercise  of  their  vocation  contempo- 
raneously with  the  events  themselves,  and  without  any  interest  or  in- 
tention to  mislead.'  O'Connor  v.  Malone  (6  CI.  &  F.  576,  577)  ;  Malone 
V.  L'Estrange  (2  Irish  Eq.  R.  16).  ...  In  the  United  States,  the  law 
is  well  settled  that  an  entry  made  by  a  person  in  the  ordinary  course 

IS — Compare  the  authorities  cited  in  W.,    |    1324- 


No.  311.  5.  REGULAR  ENTRIES.  293 

of  his  business  or  vocation,  with  no  interest  to  misrepresent,  before 
any  controversy  or  question  has  arisen,  and  in  a  book  produced  from  the 
proper  custody,  is  competent  evidence,  after  his  death,  of  the  facts  thus 
recorded.  In  a  very  early  case  the  Supreme  Court  of  Connecticut  admit- 
ted the  record  of  a  baptism  by  a  minister  of  a  parish,  who  had  since 
died,  as  evidence  of  the  fact  of  baptism.  Huntly  v.  Comstock  (2  Root, 
99).  It  has  been  repeatedly  held  in  this  Commonwealth  that  the  book 
of  a  bank  messenger  or  notary  public,  kept  in  the  usual  course  of 
business,  though  not  required  by  law,  is  competent  evidence  after  his 
death.  Welsh  v.  Barrett  (15  Mass.  380)  ;  Porter  v.  Judson  (i  Gray, 
175).  ...  In  the  case  before  us,  the  book  was  kept  by  the  deceased 
priest  in  the  usual  course  of  his  office,  and  was  produced  from  the 
custody  of  his  successor ;  the  entry  is  in  his  own  handwriting,  and 
appears  to  have  been  made  contemporaneously  with  the  performance 
of  the  rite,  long  before  any  controversy  had  arisen,  with  no  induce- 
ment to  misstate,  and  no  interest  except  to  perform  his  official  duty. 
The  addition  of  a  memorandum  that  he  had  been  paid  a  fee  for  the 
ceremony  could  not  have  added  anything  to  the  competency,  the  credi- 
bility, or  the  weight,  of  the  record  as  evidence  of  the  fact.  An  entry 
made  in  the  performance  of  a  religious  duty  is  certainly  of  no  less 
value  than  one  made  by  a  clerk,  messenger,  or  notary,  an  attorney 
or  solicitor,  or  a  physician,  in  the  course  of  his  secular  occupation."^* 


FIELDER  V.  COLLIER   (i853).i7 

/J  Ga.  4p6,  4pp. 

Action  for  a  sum  due  on  the  sale  of  cotton  for  defendant. 
Lumpkin,  J. :  "Plaintiffs  offered  in  evidence  the  depositions  of  Edward 
Hogland  and  John  Clancy,  to  prove  the  sale  of  the  cotton,  the 
expenses  incurred,  &c.  And  counsel  for  the  defendant  objected, 
because  the  witnesses  stated,  'that  they  derived  their  information  rela- 
tive to  the  matter  about  which  they  swore  from  the  books,  documents, 
accounts  and  vouchers  of  plaintiff.'  As  this  constitutes,  not  only  the 
principal  point  in  the  cause,  but  is  really  a  question  of  some  magnitude, 
it  is  proper  to  bestow  upon  it,  a  careful  consideration.  Edward  Hog- 
land was  book-keeper,  and  John  Clancy  account  sales  clerk,  of  this  large 
factorage  and  commission  house  in  Liverpool.  They  both  testify  to 
the  correctness  of  the  account  of  sales  and  expenses  upon  defendant's 
lot  of  cotton.  Appended  to  their  answer  they  swear,  'that  the  expenses 
were  reasonable,  customary,  necessary  and  just,  at  the  time  they  were 
severally  incurred ;  that  from  the  business  they  have  performed  for 
the  plaintiff's,  and  from  their  intimate  knowledge  of  their  business,  de- 

16 — Compare  the  authorities  cited  in  W.,  randa   by  book-entrant,   based  on   reports  of 

I   1523-  a   salesman,    etc.,   both   being   called  to  the 

17 — The    principle   of   this   case    is    to    be  stand     to     verify), 
compared  with  that  of  No.  92,  ante  (memo- 


^94  HEARSAY  rule:   (b)   exceptions.  No.  311, 

rived  from  long  experience,  they  can  state  that  they  kept  correct 
books;  that  the  expenses  charged  were  paid,  and  that  they  are  such 
expenses  as  are  necessarily  incidental  to  the  sale  of  cotton  in  Liver- 
pool ;  that  no  sale  can  be  effected  without  the  payment  of  such  expenses, 
and  that  the  consignee  is  liable  for,  and  must  pay  them.'  Shall  the 
plaintiffs  be  compelled  to  go  behind  the  books  thus  verified  by  the  clerks 
who  kept  them,  and  resort  to  each  of  the  sub-agents  who  participated 
in  the  transaction  and  sale  of  this  produce?  Are  not  the  entries  thus 
made  in  the  usual  course  of  the  business  of  this  extensive  trading  es- 
tablishment, and  as  a  part  of  the  proper  employment  of  the  witnesses 
who  prove  them,  not  only  the  best,  but  the  only  reliable  evidence  which 
it  is  "practicable  to  secure?  We  have  no  hesitation  in  holding  that  pro- 
priety, justice,  and  convenience  require  it  to  be  admitted.  The  weighers, 
wharfingers,  and  numerous  subordinates  who  handled  this  cotton  kept 
no  books.  They  report  to  the  clerks  who  keep  the  books  of  the  con- 
cern, and  their  functions  are  performed.  It  is  not  reasonable  to  suppose 
that  they  can  remember  the  multitude  of  transactions  thus  occurring  every 
day.  .  .  .  To  impose  a  different  rule  upon  these  establishments,  whether 
at  home  or  abroad,  and  to  require  them  at  all  times,  within  the  statutory 
period  of  limitations,  to  be  prepared  with  original  aliunde  evidence  to 
prove  the  terms  of  sale  of  all  the  property  consigned  to  them,  each  item 
of  expense,  etc.,  would  trammel  commerce  and  amount  to  a  denial  of 
justice."^  ^ 


6.      SUNDRY  DECLARATIONS  BY  DECEDENTS. 

SCOGGIN  V.  DALRYMPLE  (1859). 

7  Jones  L.  46. 

In  order  to  establish  the  boundary  of  a  grant  under  which  he  claimed, 
the  plaintiff  introduced  one  Morris,  who  stated  that  he  was  the  son  of 
Peter  Morris,  a  chain-carrier  at  the  survey  of  the  entry  for  the 
*-*^"'  grant;  that  his  father,  who  was  dead  when  the  witness  testified, 
had  pointed  out  to  him  a  corner  as  the  third  corner,  and  told  him  that 
there  were  other  corners,  which  he  (witness)  could  find  in  certain  direc- 
tions ;  that  he  made  search  and  found  marks,  which  he  has  since  known, 
and  that  he  pointed  them  out  on  the  survey  of  the  disputed  land.  The 
survey  of  the  land  was  made  partly  by  the  information  of  Morris,  and 
found  to  correspond  mainly  with  his  statement  as  to  the  first  line  and 
corner.  The  defendant's  counsel  objected  to  the  declarations  of  Peter 
Morris,  unless  he  showed  the  line  or  corner  at  the  time;  but  the  Court 
admitted  the  whole  statement,  and  the  defendant  excepted. 

Manly,  J.:  "Traditionary  evidence  has  long  been  received  by  the 
Courts  of  North  Carolina  in  questions  of  private  boundaries,  as  well  as 
public.     This  has  been  recognized  by  the  Judges  as  a  departure  from  the 

18 — Compare  the  authorities  cited  in  W.,  §    i530' 


Xo.  313.  6.   SUNDRY  decedents'   declarations.  295 

rules  of  the  common  law,  but,  nevertheless,  it  has  been  adhered  to  with- 
out deviation.  It  is  now  settled  that  hearsay  from  a  deceased  person  is 
competent  in  questions  of  boundary  between  private  estates.  The  neces- 
sity for  such  a  departure  from  the  common  law  principle  grew  out  of  the 
inartificial  manner  in  which  the  lartds  of  the  State  were  originally  sur- 
veyed and  marked,  making  it  necessary,  in  order  to  fix  the  position  of 
the  respective  parcels  to  resort  more  frequently  to  tradition,  and  to  give 
this  kind  of  evidence  greater  efficiency  by  enlarging  its  limits.  What- 
ever may  have  been  the  reason,  this  extended  use  of  hearsay,  according 
to  the  rule  above  laid  down,  is  now  firmly  established. 

"The  precise  point,  and  the  only  one  presented  in  the  bill  of  excep- 
tions, is  whether  the  declaration  of  a  deceased  person  is  admissible  to 
establish  a  corner  tree,  which  is  not  in  view  at  the  time  of  the  declara- 
tion, but  the  position  of  which  is  described  by  the  declarant,  so  that  it  is 
found  by  a  witness.  We  can  perceive  no  reason  why  such  testimony  is 
not  admissible.  The  hearsay  becomes  definite  by  the  aid  of  the  witness, 
who  following  the  directions  given,  finds  the  tree,  and  while  it  might  be 
considered  as  of  doubtful  admissibility,  disconnected  from  the  evidence  of 
the  living  witness,  yet,  aided  by  that,  it  seems  to  be  clearly  competent."^' 


CARVER  V.  JACKSON  dem.  ASTOR  (1830). 

4  Pet.  I,  80,  84. 

Story,  J.:  "The  action  is  ejectment,  brought  upon  several  demises; 
and  among  others,  upon  the  demise  of  John  Jacob  Astor.  .  .  .  Both 
parties  claim  under  Mary  Philipse,  who,  it  is  admitted,  was 
**•*■  seised  of  the  premises  in  fee,  in  January,  1758.  Some  of 
the  counts  in  the  declaration  are  founded  upon  demises  made  by  the 
children  of  Mary  Philipse,  by  her  marriage  with  Roger  Morris;  and 
one  of  them  is  upon  the  demise  of  John' Jacob  Astor,  who  claims  as 
a  grantee  of  the  children.  .  .  .  The  next  exceptions  of  the  defendant 
grew  out  of  the  non-production  of  the  lease  recited  in  the  deed  of 
marriage  settlement,  and  of  the  insufficiency  of  the  evidence  to  estab- 

19 — Field,    C.    J.,    in    Morton    v.    Folger,  own   land:    "It  must   be   presumed   to  have 

IS     Cal.     275     (i860):     "[The    authorities]  been  their  interest  to  extend  the  boundaries 

show    the    general    doctrine    which    will    be  of   the   lot,   and   their   declarations   in    favor 

found    to    prevail    in    the    majority    of    the  of  their   interest  were  clearly  not  admissi- 

American    States.     By  them   it  is  clear  that  ble." 

the  declarations  on  a  question  of  boundary  Hubbard,  J.,  in  Daggett  v.  Shaw,  5  Mete. 
of  a  deceased  person,  who  was  in  a  situa-  226  (1842):  "Declarations  of  ancient  per- 
tion  to  be  acquainted  with  the  matter,  and  sons,  made  while  in  possession  of  land 
who  was  at  the  time  free  from  any  inter-  owned  by  them,  pointing  out  their  bound- 
est  therein,  are  admissible,  and  whether  the  aries  on  the  land  itself,  and  who  are  de- 
boundary  be  one  of  a  general  or  public  ceased  at  the  time  o'f  the  trial,  are  admis- 
interest,  or  be  one  between  the  estates  sible  in  evidence,  where  nothing  appears 
of    private    proprietors."  to   show   that   they   were    interested   in   thus 

Richardson,  C.  J.,  in  Shepherd  v.  Thomp-  pointing   out   their   boundaries." 

son,  4  N.  H.  215  (1827),  excluding  declara-  Compare    the    authorities    cited    in     W., 

tions  as  to  the  boundary  of  the  declarants'  §5    1363-1570. 


296 


HEARSAY    rule:     (b)     EXCEPTIONS. 


No.  313. 


lish  cither  its  original  existence,  or  its  subsequent  loss.  .  .  .  We  are 
of  opinion,  not  only  that  the  recital  of  the  lease  in  the  deed  of  mar- 
riage settlement  was  evidence  between  these  parties  of  the  original 
existence  of  the  lease,  but  that  it  was  conclusive  evidence  between 
these  parties  of  that  original  existence ;  and  superseded  the  necessity 
of  introducing  any  other  evidence  to  establish  it.  .  .  .  It  is  laid  down 
generally,  that  a  recital  of  one  deed  in  another  binds  the  parties  and 
those  who  claim  under  them.  Technically  speaking,  it  operates  as  an 
estoppel,  and  binds  parties  and  privies ;  privies  in  blood,  privies  in 
estate,  and  privies  in  law.  But  it  does  not  bind  mere  strangers,  or  those 
who  claim  by  title  paramount  the  deed.  It  does  not  bind  persons  claim- 
ing by  an  adverse  title,  or  persons  claiming  from  the  parties  by  title 
anterior  to  the  date  of  the  reciting  deed.  Such  is  the  general  rule.  But 
there  are  cases  in  which  such  a  recital  may  be  used  as  evidence  even 
against  strangers.  If,  for  instance,  there  be  the  recital  of  a  lease  in  a 
deed  of  release,  and  in  a  suit  against  a  stranger  the  title  under  the 
release  comes  in  question,  there  the  recital  of  the  lease  in  such  release 
is  not  per  se  evidence  of  the  existence  of  the  lease ;  but  if  the  existence 
and  loss  of  the  lease  be  established  by  other  evidence,  there  the  recital 
is  admissible  as  secondary  proof  in  the  absence  of  more  perfect  evi- 
dence, to  establish  the  contents  of  the  lease;  and  if  the  transaction  be 
an  ancient  one  and  possession  has  been  long  held  under  such  release 
and  is  not  otherwise  to  be  accounted  for,  there  the  recital  will  of  itself 
materially  fortify  the  presumption  from  lapse  of  time  and  length  of 
possession  of  the  original  existence  of  the  lease."^'' 


Statute:  Massachusetts:  St.  1898,  c.  535,  Rev.  L.  1902,  c.  175,  ^66; 
"No  declaration  of  a  deceased  person  shall  be  excluded  as  evidence  on 
the  ground  of  its  being  hearsay,  if  it  appears  to  the  satisfaction 
**-^*      of  the  judge  to  have  been  made  in  good  faith  before  the  begin- 
ning of  the  suit  and  upon  the  personal  knowledge  of  the  declarant."^^ 


7.    REPUTATION. 

a.    Landed  Rights  and  Liabilities. 

REGINA  V.  BEDFORDSHIRE    (1855). 

4E.&B.  535. 

On  a  presentment  that  a  public  common  bridge  was  out  of  repair 

and  that  the  inhabitants  of  the  county  ought  to  repair  it,  evidence  of 

reputation  was  tendered  that  the  lords  of  three  manors  in  the 

'^^^      county  ought  by  custom  to  repair  certain  different  parts  of  the 

bridge,  and  not  the  inhabitants. 


20 — Compare  the  authorities  cited  in  W., 
IS73- 


21 — Compare  the  authorities  cited  in  W., 
§  1576. 


No.  315.  7.  REPUTATION.  297 

Campbell,  L.  C.  J.:  "The  question  which  we  have  to  determine  in 
this  case  is.  Whether  at  the  trial  of  an  indictment  for  non-repair  of  a 
pubhc  bridge,  with  a  plea  that  third  persons  are  bound  to  repair  the 
bridge,  ratione  tenuroe,  evidence  of  reputation  be  admissible.  The  law 
of  England  lays  down  the  rule  that  ,on  the  trial  of  issues  of  fact  before 
a  jury,  hearsay  evidence  is  to  be  excluded,  as  the  jury  might  often  be 
misled  by  it;  but  makes  exceptions  where  a  relaxation  of  the  rule  tends 
to  the  due  investigation  of  truth  and  the  attainment  of  justice.  One 
of  these  exceptions  is  where  the  question  relates  to  matters  of  public 
or  general  interest.  The  term  'interest'  here  does  not  mean  that  which 
is  'interesting'  from  gratifying  curiosity  or  a  love  of  information  or 
amusement,  but  that  in  which  a  class  of  the  community  have  a  pecu- 
niary interest,  or  some  interest  by  which  their  legal  rights  or  liabilities 
are  affected.  The  admissibility  of  the  declarations  of  deceased  persons 
in  such  cases  is  sanctioned,  because  these  rights  and  liabilities  are  gen- 
erally of  ancient  and  obscure  origin,  and  may  be  acted  upon  only  at 
distant  intervals  of  time ;  because  direct  proof  of  their  existence  there- 
fore ought  not  to  be  required;  because  in  local  matters,  in  which  the 
community  are  interested,  all  persons  living  in  the  neighborhood  are 
likely  to  be  conversant ;  because,  common  rights  and  liabilities  being 
naturally  talked  of  in  public,  what  is  dropped  in  conversation  respect- 
ing them  may  be  presumed  to  be  true ;  because  conflicting  interests  would 
lead  to  contradiction  from  others  if  the  statements  were  false;  and 
thus  a  trustworthy  reputation  may  arise  from  the  concurrence  of  many 
parties  unconnected  with  each  other,  who  are  all  interested  in  investi- 
gating the  subject.  But  the  relaxation  has  not  been,  and  ought  not 
to  be,  extended  to  questions  relating  to  matters  of  mere  private  interest ; 
for  respecting  these  direct  proof  may  be  given,  and  no  trustworthy  repu- 
tation is  likely  to  arise.  We  must  remark,  however,  that,  although 
a  private  interest  should  be  involved  with  a  matter  of  public  interest, 
the  reputation  respecting  rights  and  liabilities  affecting  classes  of  the 
community  cannot  be  excluded,  or  this  relaxation  of  the  rule  against 
the  admission  of  hearsay  evidence  would  often  be  found  unavailing. 

"Let  us  now  upon  these  principles  examine  whether  the  issue  joined 
on  the  record  raises  a  question  on  which  evidence  of  reputation  ought 
to  be  admitted.  It  does  involve  matter  of  private  right,  viz. :  whether 
certain  lands  are  burdened  with  the  charge  of  repairing  certain  arches 
of  this  bridge ;  a  matter  of  great  importance  to  the  owners  of  these 
lands.  But  does  it  not  likewise  relate  to  matters  of  public  and  general 
interest  within  the  received  legal  meaning  of  these  words?  All  the 
inhabitants  of  the  county  of  Bedford  who  have  any  property  liable  to 
be  assessed  to  the  county  rate  have  an  interest  in  the  question  whether 
the  bridge  is  to  be  repaired  bv  the  county,  or  whether  the  county  is 
exempted  from  this  burden,  the  obligation  to  repair  it  lying  upon  the 
owners  of  certain  lands  ratione  teniira:.    The  question  therefore  is  almost 


298 


HEARSAY    rule:     (b)    EXCEPTIONS. 


No.  315. 


sure  to  be  discussed  in  tlie  neighborhood;  and  a  true  reputation  upon 
the  subject  is  hkely  to  prevail."^ 


HARRIMAN  v.  BROWN    (1837). 

8  Leigh  /o/. 

Writ  of  right  for  two  hundred  acres  of  land;  the  writ  was  brought 
by  John  Harriman  against  Matthew  D.  Brown.  By  the  depositions  of 
Lewis  Jones,  it  appeared  that  in  December  1795  his  father  moved 
^■^"  to  the  land  of  Shadrach  Harriman  on  the  Great  Kanawha  river, 
in  what  was  then  Kanawha  county;  that  his  father  Uved  on  this  land 
about  seven  years,  and  whilst  living  on  it,  built  a  cabin  and  cleared  some 
land;  that  Shadrach  Harriman  was  then  dead,  and  David  Milburn, 
who  married  his  widow  and  acted  as  guardian  for  Harriman's  children, 
leased  the  land  to  the  witness's  father ;  that  while  his  father  lived  on 
the  land,  Milburn  shewed  to  his  father  particular  trees  as  Harriman's 
corners,  and  it  was  then  well  understood  in  the  country  that  those  trees 
were  Harriman's  corners.  The  witness  stated  his  belief  that  he 
knew  the  corners  of  Harriman's  land  well,  especially  the  front  or  river 
corners.  The  lower  front  or  river  corner,  he  said,  was  a  black  wal- 
nut tree,  which  stood  just  below  the  mouth  of  Plantation  creek, 
which  walnut  tree  was  then,  by  almost  every  person  in  the  country 
who  knew  anything  about  the  land  surveys,  called  and  believed  to  be 
Washington's  upper  front  corner,  it  being  marked  with  the  initials  of 
his  name,  viz.  G.  W.  At  the  time  of  giving  this  deposition,  the  wit- 
ness's father  was  dead.  By  the  deposition  of  William  Arbuckle  it 
appeared  that  the  witness,  after  stating  that  he  always  heard  that  Wash- 
ington's upper  corner  was  a  black  walnut  with  G.  W.  on  it,  and  that 
Harriman's  lower  corner  was  Washington's  upper  corner,  was  asked 
by  what  means  he  ascertained  that  walnut  to  be  Harriman's  corner ; 
and  his  answer  was,  that  he  was  told  by  Reuben  Slaughter  that  it 
was  Washington's  upper  corner,  and  from  the  common  report  of  the 
country  he  ascertained  that  Washington's  upper  corner  was  Harri- 
man's  lower   corner. 


1 — Seymour,  J.,  in  Robinson  v.  Dew- 
hurst,  15  C.  C.  A.  466,  68  Fed.  336  (:89s): 
"The  exception  raises  a  question  regarding 
that  exception  to  the  general  rule  exclud- 
ing hearsay  evidence  which  permits  such 
evidence  to  be  given,  under  certain  limita- 
tions, in  cases  of  ancient  boundaries.  The 
exception,  as  it  originated  in  the  English 
courts,  was  confined  to  such  boundaries 
as  were  matters  of  public  concern,  and 
was  part  of  a  larger  exception  to  the  rule. 
On  questions  respecting  the  existence  of 
manors;  manorial  customs;  customs  of 
mining    in    particular    districts;    a   parochial 


modus;  a  boundary  between  counties,  par- 
ishes, or  manors;  the  limits  of  a  town;  a 
right  of  common;  a  prescriptive  liability  to 
repair  bridges;  the  jurisdiction  of  certain 
courts, — matters  in  which  the  public  is 
concerned,  as  having  a  community  of  in- 
terest, from  residing  in  one  neighborhood, 
or  being  entitled  to  the  same  privileges, 
or  subject  to  the  same  liabilities, — common 
reputation  and  the  declarations  of  deceased 
persons  are  received,  if  made,  ante  litem 
motam,  by  persons  in  a  position  to  be  prop- 
erly cognizant   of   the   facts." 


No.  316.  7.   REPUTATION.  299 

Tucker,  P. :  "In  this  case  it  became  important  to  establisli  the 
identity  of  a  black  walnut,  which  the  tenant  contended  was  the  begin- 
ning corner  of  Harriman's  patent,  mider  which  the  demandant  claimed. 
His  patent  call  is  to  adjoin  the  upper  end  of  Washington's  survey,  at  a 
large  black  walnut.  Now  the  acknowledged  upper  boundary  of  Wash- 
ington was  about  565  poles,  or  considerably  more  than  a  mile  and  a 
half,  below  the  black  walnut  contended  for.  And  hence  it  became  neces- 
sary to  ascertain  whether  this  black  walnut  was  the  tree  referred  to  in 
the  survey;  for  if  so,  it  would  control  the  call  for  Washington's  line, 
upon  the  well  established  principle  that  natural  or  artificial  boundaries, 
which  are  the  objects  of  the  senses,  must  control  the  call  for  ideal 
boundaries,  or  for  lines  which  are  often  matters  of  conjecture  and 
always  liable  to  be  mistaken,  and  particularly  where  (as  was  the  case 
here)  the  upper  line  of  Washington  was  a  protracted  line.  See  Baxter 
V.  Evett's  lessee,  7  Monroe  329,  333,  334.  In  order  then  to  establish 
the  fact  that  the  black  walnut  was  the  reputed  corner  of  Harriman,  and 
that  in  making  the  survey  it  was  by  mistake  supposed  to  be  Washing- 
ton's upper  corner,  the  tenant  introduced  the  depositions  of  Lewis  Jones, 
Benjamin  Jones  and  William  Arbuckle.  To  these  depositions  the  de- 
mandant objected,  .  .  .  that  evidence  of  reputation  as  to  boundary  is  in- 
admissible, and  that  for  this  reason  also  the  testimony  introduced  was  im- 
proper. Questions  of  boundary,  after  the  lapse  of  many  years,  become  of 
necessity  questions  of  hearsay  and  reputation.  For  boundaries  are  arti- 
ficial, arbitrary,  and  often  perishable ;  and  when  a  generation  or  two  have 
passed  away,  they  cannot  be  established  by  the  testimony  of  eye-wit- 
nesses. In  such  cases,  therefore,  it  becomes  necessary  to  look  to  repu- 
tation, or  depend  upon  hearsay  evidence  of  the  former  existence  and 
actual  locality  of  an  artificial  boundary.  .  .  .  Because  we  have  not 
manors,  shall  we  therefore  lose  the  benefit  of  the  rule  which  considers 
boundary  as  matter  of  reputation,  and  permits  hearsay  evidence  of 
its  locality?  If  a  like  state  of  thing  exists  among  us,  if  the  principle 
will  be  found  to  apply  in  its  utmost  strictness,  shall  we  reject  the  evi- 
dence because  the  case  is  not  identical  ?  By  no  means.  What  then  is 
the  avowed  principle  on  which  the  distinction  rests  in  the  English  courts  ? 
.  .  .  'Evidence  of  reputation  upon  general  points  is  receivable,  because 
all  mankind  being  interested  therein,  it  is  natural  to  suppose  that  they 
may  be  conversant  with  the  subjects,  and  that  they  would  discourse 
together  about  them,  having  all  the  same  means  of  information.'  (per 
Lord  Ken  YON  [in  Morewood  v.  Wood,  14  East  329].  What  language 
can  be  more  appropriate  to  the  case  of  land  adventurers  in  our  western 
country  ?  That  country  was  covered  with  entries  and  surveys  between 
fifty  and  sixty  years  ago,  and  it  was  often  many  years  after  a  survey 
was  made,  before  the  tracks  taken  up  were  settled  by  their  owners. 
Thousands  have  never  yet  seen  their  lands.  The  impossibility,  in  in- 
numerable instances,  of  proving  marked  corners  by  eye-witnesses  is 
apparent.  What  is  to  supply  that  lost  evidence?  If  reputation  is  admis- 
sible to  establish  the  boundaries  of  a  manor,  because  all  the  tenants  of 


300 


HEARSAY    rule:     (b)     EXCEPTIONS. 


No.  316. 


the  manor  are  interested  therein,  and  are  naturally  conversant  about 
the  boundary,  and  may  be  presumed  to  discourse  together  about  it, 
what  shall  we  say  in  the  case  of  our  wild  lands,  which  were  covered 
with  early  adventurers,  whose  chief  concern  was  to  make  themselves 
acquainted  with  the  lines  and  corners  of  all  around  them?  Every  one 
who  knows  anything  of  the  history  of  that  country,  must  know  the 
deep  interest  and  familiar  knowledge  which  the  early  settlers  possessed 
in  relation  to  the  corners  and  boundaries  and  localities,  not  only  of  their 
own  particular  tract,  but  of  almost  every  tract  within  range  of  their 
settlement.  Every  one  knows  that  such  subjects  were  not  only  the 
familiar  topics  of  conversation,  but  that  they  were  the  all-absorbing 
topics.  I  will  venture  to  conjecture  that  for  one  discussion  in  private  con- 
versation as  to  the  boundaries  of  an  English  manor,  there  have  been  a 
hundred  animated  and  interested  debates  about  the  situation  of  a  corner 
tree  in  our  western  coimties.  I  take  it,  therefore,  that  every  motive 
for  the  admission  of  hearsay  testimony  as  to  boundary  in  case  of  a 
manor  applies  with  equal  force  to  its  admission  in  questions  of  boundary 
with  us."^ 


h.     General  History. 

STEYNER  V.  DROITWICH    (1696). 

Skinner  62^,  i  Salk.  281. 

"Camden's  Britannia  was  offered  in  evidence  to  prove  a  reputation 
ninety-two  years  ago  that  salt  ought  to  be  made  only  at  the  three  pits  of 

the  Burgesses  [of  Droitwich]  and  that  all  others  were  excluded. 

And  it  was  said  that  the  sayings  of  antient  persons  who  are  dead  is 
always  allowed,  and  this  amounts  to  as  much  as  the  saying  of  an  old  man 
at  least,  and  that  Camden  with  a  publick  person,  being  historiographer 
Royal,  etc.,  and  that  a  gravestone  had  been  allowed  as  evidence.  Sed 
non  allocatur;  for  if  one  part  of  Camden  be  allowed,  another  part  ought 
to  be,  and  if  Camden,  then  another  historian  as  well  as  him,  and  there 
would  not  be  any  certainty.  .  .  .  And  the  court  said  that  an  history  may 
be  evidence  of  the  general  history  of  the  realm,  but  not  of  a  particular 
custom ;  and  therefore  secundum  subjectani  materiam  it  may  be  good 
evidence  or  not.''^ 


2 — Compare  the  authorities  cited  in  W., 
§§  1586-1587. 

3 — L.  C.  J.  Jeffreys,  in  Lady  Ivy's  Trial, 
10  How.  St.  Tr.  555,  625  (1684),  reject- 
ing a  history  offered  to  show  the  date  of 
Charles  V's  abdication  and  Philip  and 
Mary  becoming  king  and  queen  of  Spain, 
over  a  century  before:  "Instead  of  records, 
the  upshot  is  a  little  lousy  history.  .  .  . 
Is  a  printed  history,  written  by  I  know  not 
who,  an  evidence  in  a  court  of  law?" 

Story,  J.,  in  Morris  v.  Lessees,  7  Pet. 
588    (1833):    "Historical    facts    of    general 


and  public  notoriety  may  indeed  be  proved 
by  reputation,  and  that  reputation  may  be 
established  by  historical  works  of  known 
character  and  accuracy.  But  evidence  of 
this  sort  is  confined  ...  to  cases  where 
from  the  nature  of  the  transactions,  or 
the  remoteness  of  the  period,  or  the  pub- 
lic and  general  reception  of  the  facts,  a 
just  foundation  is  laid  for  general  confi- 
dence." 

Compare  No.   636,  post,  and  the  authori- 
ties  cited    in    W.,    §§    1597-8. 


No.  318.  7.   REPUTATION.  301 


c.    Marriage. 

BREAD ALBANE  CASE    (1867). 
L.  R.  I  H.  L.  Sc.  ipp. 

The  facts  have  been  already  given  ante  No.  192. 

Lord  Cranwortii  :  "By  the  law  of  England,  and,  I  presume,  of  all 
other  Christian  countries,  where  a  man  and  woman  have  long 
**^^  lived  together  as  man  and  wife,  and  have  been  so  treated  by 
their  friends  and  neighbours,  there  is  a  pri)iia  facie  presumption  that  they 
really  are  and  have  been  what  they  profess  to  be.  If  after  their  deaths 
a  succession  should  open  to  their  children,  any  one  claiming  a  share  in 
such  succession  as  a  child  would  establish  a  good  prima  facie  case  by 
showing  that  his  parents  had  always  passed  in  society  as  man  and 
wife,  and  that  the  claimant  had  always  passed  as  their  child.  If  the 
validity  of  the  parents'  marriage  should  be  disputed,  it  might  become 
necessary  for  the  person  claiming  as  their  child  to  establish  its  validity, 
and,  inasmuch  as  in  England  all  marriages  are  solemnized  in  public  and 
publicly  recorded,  it  is  reasonable  to  require  the  claimant  to  give  posi- 
tive evidence  of  its  celebration,  or  else  to  explain  why  he  is  unable  to 
do  so.  The  principle  is  the  same  in  Scotland ;  but  as  marriage  there 
is  not  necessarily  celebrated  in  public  or  recorded,  it  is  much  more 
probable  than  it  would  be  in  England  that  there  may  have  been  a 
marriage,  but  that  there  may  be  no  means  of  giving  direct  proof  of 
it.  Those  who  have  to  decide,  after  the  death  of  parents,  on  the  le- 
gitimacy of  children  must  much  oftener  than  in  England  have  to  rely 
solely  on  the  prima  facie  evidence  afforded  by  the  conduct  of  the  par- 
ties towards  one  another  and  of  their  friends  and  neighbors  towards 
them.  This  sort  of  evidence  is  spoken  of  in  Scotland  as  habite  and 
repute.  Persons  are  sometimes  said  to  be  married  persons  by  habite 
and  repute.  I  agree,  however,  with  the  argument  of  the  Appellant 
(speaking  with  deference  to  those  who  think  otherwise),  that  this  is 
an  inaccurate  mode  of  expression.  Marriage  can  only  exist  as  the  result 
of  mutual  agreement.  The  conduct  of  the  parties  and  of  their  friends 
and  neighbors,  in  other  words,  habite  and  repute,  may  afford  strong, 
and.  in  Scotland,  attending  to  the  laws  of  marriage  there  existing,  un- 
answerable evidence  that  at  some  unascertained  time  a  mutual  agree- 
ment to  marry  was  entered  into  by  the  parties  passing  as  man  and 
wife.  I  cannot,  however,  think  it  correct  to  say  that  habite  and  repute 
in  any  case  make  the  marriage."* 

4 — Lawrence,  J.,   in   Ringhouse  v.    Keen-  dcnce    of    reputation    in    regard    to    death, 

er,   49   111.   471    (1869),   admitting  testimony  unless     the     reputation     came     from     family 

of  friends    that   "his   death    was   announced  relatives,  would  sometimes  render  the  proof 

in    the    newspapers    and    he    was    spoken    of  of    death    impossible,    though     there    might 

by     liis    acquaintances     as     dead":       "In     a  exist  no  doubt  of  the  fact,  and  thus  defeat 

population    as    unstable    as    ours,    and    com-  the   ends   of  justice." 

prising  so  many  persons  whose  kindred  are  Compare    the   authorities  cited   in    W.,    §§ 

in    distant    lands,    the    refusal    of    all    evi-  1602,     1605,    and    Nos.     192-197,    ante. 


302 


HEARSAY    rule:     (b)     EXCEPTIONS. 


No.  319. 


d.    Moral  Character.^ 


•      BUCKLIN  V.  STATE  (1851). 
20  Oh.  23. 
Caldwell,  J. :   "The  term  'character,'  when  more  strictly  applied,  re- 
fers to  the  inherent  qualities  of  the  person,  rather  than  to  any  opinion 
that  may  be  formed  or  expressed  of  him  by  others ;  the  term  'repu- 
tation'  applies  to  the  opinion  which  others  may  have  formed  and 
expressed  of  his  character ;  so  that,  as  has  been  remarked  in  some  of  the 
books,  when  treating  on  this  subject,  a  man's  character  may  really  be 
good  when  his  reputation  is  bad,  and,  on  the  other  hand,  his  reputation 
may  be  good  when  his  character  is  bad.     But,  as  we  have  before  inti- 
mated, the  terms  when  used  in  connection  with  this  subject  are  generally 
used  in  contradiction  to  this  distinction, — the  term  'general  character'  be- 
ing used  in  legal  signification,  as  it  is  frequently  used  in  common  par- 
lance, to  express  the  opinion  that  has  generally  obtained  of  a  person's 
character,  the  estimate  the  community  generally  has  formed  of  it.    When 
you  ask  a  witness,  then,  in  this  sense  of  the  term,  what  a  man's  general 
character  is  for  truth  and  veracity*  he  is  called  on  to  answer  as  to  what 
opinion  is  generally  entertained  and  expressed  of  him  by  those  acquainted 
with  him." 


PICKENS  V.  STATE  (1884). 
61  Miss.  566. 
Campbell,  C.  J. :  "The  testimony  of  one  Garrett  was  a  potent  factor 
in  producing  the  verdict  of  guilty.  The  accused  sought  to  impeach  Gar- 
rett, who  was  a  witness  for  the  State,  by  evidence  that  his  general 
"""  reputation  for  truth  and  veracity  was  bad,  and  in  order  to  do  this 
he  produced  a  witness.  Miller,  and  asked  him  if  he  knew  the  general  repu- 
tation for  truthfulness  of  Garrett  in  the  community  in  which  he  lives? 
The  witness  replied,  'That's  a  right  delicate  question  to  answer,'  and  then 
counsel  explained  the  question  to  mean,  'if  he  (witness)  knew  what  Gar- 
rett's neighbors  generally  thought  of  him  as  a  man  of  truth  and  veracity,' 
and  insisted  on  an  answer  to  the  question  thus  explained.  At  this  junc- 
ture the  Court  stated  to  the  witness  that  'general  reputation  meant  what 
a  majority  of  the  people  in  Garrett's  community,  or  the  people  with  whom 
he  was  most  conversant,  say  of  his  character  for  truth  and  veracity.'  To 
this  statement  of  the  Court  the  accused  excepted,  and  the  witness,  thus  in- 
structed by  the  Court,  answered,  'I  cannot  say  what  a  majority  say  of 
him  in  that  respect.'  Other  witnesses  produced  by  the  accused  immedi- 
ately afterward  severally  replied  that  they  did  not  know  Garrett's  general 
reputation  for  truth  and  veracity.  One  of  them  answered  he  could  not  say 
'what  a  majority  of  the  people  think  of  him  (Garrett).  General  reputation 
consists  in   what  is  generally  thought  of  one  by  those   among  whom 

5 — For     other     rules     about     Character,  see   Nos.    21,    33,    116,    120,   ante,   and   No. 

i2A.     t>OSt. 


No.  321.  7.  REPUTATION.  303 

he  resides  and  with  whom  he  is  chiefly  conversant.  'Common  opinion'; 
'that  in  which  there  is  general  concurrence' ;  'the  prevailing  opinion  in 
that  circle  where  one's  character  is  best  known' ;  'what  is  generally  said 
by  those  among  whom  he  associates  and  by  whom  he  is  known' ;  'common 
report  among  those  who  have  the  best  opportunity  of  judging  of  his  habits 
and  integrity' ;  'common  reputation  among  his  neighbors  and  acquaint- 
ances'— are  so  many  forms  of  expression  by  which  an  effort  has  been 
made  to  define  wherein  consists  general  reputation.  ...  It  was  not  nec- 
essary for  him  [the  witness]  to  have  heard  a  majority,  or  any  given 
proportion,  of  that  undefined  and  undefinable  circle,  designated  as  the 
'neighborhood'  or  'community,'  say  what  they  thought  of  G.  .  .  .  While 
a  witness  should  be  cautious  on  this  subject,  and  not  be  encouraged  to 
testify  that  he  is  acquainted  with  the  general  reputation  of  another  unless 
he  knows  the  generally  prevalent  sentiment  of  those  most  conversant  with 
him,  he  is  not  to  be  repressed  by  telling  him  he  must  know  what  a  major- 
ity say  of  him  about  whom  he  is  called  to  testify.  .  .  .  He  may  have  heard 
a  sufficient  number  express  themselves  to  be  willing  to  say  he  knows  the 
general  concurrence  in  one  view  of  a  number  great  enough  to  be  re- 
garded as  a  fair  index  to  the  community.  One  may  know  the  general 
reputation  of  Sargent  S.  Prentiss  as  a  matchless  orator,  although  he  has 
heard  a  small  proportion  of  those  who  felt  the  thrill  of  his  unrivalled 
eloquence  say  what  they  thought  of  him."*^ 


ATLANTIC  &  BIRMINGHAM  R.  CO.  v.  REYNOLDS  (1903). 
///  Ga.  47,  42  S.  E.  456. 
Fish,  J. :  "Reynolds  sued  the  Waycross  Air  Line  Railroad  Company 
for  damages  alleged  to  have  been  sustained  by  him  in  consequence  of  in- 
juries received  by  the  falling  of  a  telephone  pole,  forming  a  part 
of  a  telephone  line  owned  and  operated  by  the  defendant  company, 
which  pole  he,  in  the  course  of  his  employment  by  the  company  as  a  line- 
man, had  ascended  for  the  purpose  of  repairing  a  broken  telephone  wire. 
One  of  the  grounds  of  the  motion  for  a  new  trial  alleges  that  the  court 
erred  in  'sustaining  the  objections  of  plaintiff's  counsel  to  defendant's 
witnesses  C.  J.  Hendry,  John  Hayes,  J.  B.  Quarterman,  and  Dan  Hall, 
testifying  that,  while  they  did  not  know  plaintiff's  reputation  where  he 
lived  in  Waycross,  yet  they  were  well  acquainted  with  him  and  knew  his 
general  reputation  up  and  down  the  Waycross  Air  Line  Railroad,  where 
he  worked,  which  was  bad,  and  from  that  they  would  not  believe  him  on 
oath.'  We  think  this  ground  was  well  taken.  ...  As  the  general  repu- 
tation of  a  man  is  usually  formed  in  the  neighborhood  where  he  spends 
most  of  his  time,  and  most  frequently  comes  in  social  and  business  contact 
with  his  fellow-men,  it  is  usual  to  limit  the  inquiry  as  to  a  witness'  gen- 
eral character  to  his  general  reputation  in  the  neighborhood  where  he 
lives ;  that  is,  where  he  has  his  home.  We  do  not  think,  however,  there 
is  any  hard  and  fast  rule  which  requires  this  to  be  done  in  every  possible 

6 — Compare  the  authorities  cited   in   W.,   §§    1611-1614. 


304 


HEARSAY    rule:     (b)     EXCEPTIONS. 


No.  321. 


case.  The  very  reason  for  so  limiting  the  inquiry  generally  may  be  a 
good  reason  for  allowing  more  latitude  in  an  exceptional  case.  The 
reason  for  so  limiting  the  inquiry  generally,  as  already  indicated,  is 
that  the  place  in  which  to  ascertain  a  man's  true  reputation  is  the  place 
where  people  generally  have  had  the  best  opportunities  of  forming  a 
correct  estimate  of  his  character.  It  is  obvious  that  this  may  not,  in 
every  instance,  be  the  neighborhood  where  a  man's  home  is  situated.  .  .  . 
We  apprehend  that  there  may  be  cases  in  which  a  person  has  established 
no  general  reputation  in  the  immediate  neighborhood  of  his  home,  but 
has  established  such  a  reputation  elsewhere.  This  may  arise  from  the 
fact  that  his  home  is  located  in  one  place  and  his  daily  business  or  work 
is  carried  on  in  another,  in  which  latter  place  he  spends  nearly  all  of  his 
time,  and  hence  is  well  known  to  people  generally,  while  he  rarely  comes 
in  social  or  business  contact  with  people,  outside  of  his  family  circle,  in 
the  neighborhood  of  his  home."' 


FOSTER  V.  BROOKS  (1849). 
6  Ga.  2po. 
NiSBET,  J.,  excluding  reputation  as  evidence  of  insanity :  "If  reputa- 
tion of  insanity  is  competent,  then  reputation  of  sanity  must  be  also.    By 
this  kind  of  evidence  a   fool  may  be  proved  a  wise  man,  and  a 
philosopher   a   fool.     Public   opinion  declared  Copernicus   a   fool 
when  he  promulgated  the  planetary  system,  and  Columbus  a  fool  when 
he  announced  the  sublime  idea  of  a  New  World.    Hazardous  in  the 
extreme  would  it  be  to  the  rights  of  parties  under  the  law,  if  they  were 
allowed  to  depend  upon  the  opinion  of  a  neighborhood  of  the  sanity  of 
individuals.     Hearsay  evidence  is  excluded  because  a  witness  ought  to 
be  subjected  to  cross-examination,  that  being  a  test  of  truth.     It  ought 
to  appear  what  were  his  powers  of  perception,  his  opportunities  of  ob- 
servation, his  attentiveness  in  observing,  the  strength  of  his  recollection, 
and  his  disposition  to  speak  the  truth. "^ 


8.     OFFICIAL  STATEMENTS. 

REX  V.  AICKLES    (1785). 

I  Leach  Cr.  L.  jd  ed.  436. 

Indictment    for    returning    from    transportation    beyond    seas    within 

seven  years  after  discharge  from  jail.     It  was  held  incumbent  on  the 

prosecutor  to  prove  the  precise  day  on  which  the  prisoner  was 

'^  discharged;  and  for  this  purpose  Mr.  Nezuman,  clerk  of  the  papers 

of  the  prison,  produced  a  daily  book,  which  he  kept,  containing  entries 

of  the  names  of  all  the  debtors  and  criminals  who  are  brought  into  the 

prison,  and  the  times  when  they  were  discharged:  but  it  appeared  that 

those  entries  were  not  made  from  Mr.  Newman's  own  knowledge  of  the 


7 — Compare  the  authorities  cited  in  W., 
§§    161S,    1616. 


8 — Compare   the   authorities   cited   in   W., 
§§    1620,    1621, 


No.  324.  8.  OFFICIAL  STATEMENTS,  305 

facts,  but  that  he  generally  made  them  from  the  information  of  the  turn- 
keys, and  frequently  from  the  turnkey's  indorsements  on  the  back  of  war- 
rants, which  warrants  were  afterwards  regularly  filed.  It  was  contended 
by  the  prisoner's  counsel,  Mr.  Garrozv,  that  these  were  not  original  en- 
tries of  the  facts ;  and  therefore  that  the  turnkey  himself  by  whom 
Aicklcs  was  discharged,  or  the  original  minute  from  which  the  entry 
of  his  discharge  had  been  made,  should  be  produced,  because  they  alone 
were  the  best  evidence  upon  this  subject,  and  it  was  in  the  prosecutor's 
power  to  produce  them.  It  was  compared  to  the  production  of  a  trades- 
man's ledger  in  order  to  prove  the  delivery  of  goods,  instead  of  pro- 
ducing the  original  memorandum  or  day-book  from  which  the  ledger 
had  been  posted;  and  it  was  argued,  that  no  credit  could  be  given  to 
entries  made  entirely  from  hearsay  and  information,  and  therefore  they 
ought  not  to  be  received  as  evidence. 

Per  Curiam  :  "The  law  reposes  such  a  confidence  in  public  officers 
that  it  presumes  they  will  discharge  their  several  trusts  with  accuracy 
and  fidelity;  and  therefore  whatever  acts  they  do  in  discharge  of  their 
public  duty  may  be  given  in  evidence  and  shall  be  taken  to  be  true, 
under  such  a  degree  of  caution  as  the  nature  and  circumstances  of  each 
case  may  appear  to  require.  ...  In  the  present  case  Mr.  N.  has  no 
private  interest  whatsoever  in  this  book  to  induce  him  to  make  factitious 
entries  in  it.     He  is  a  public  officer  recording  a  public  transaction."^ 


STEWART  V.  ALLISON  (1821). 
6  S.  &  R.  327. 
Smith  Allison,   the   defendant  in   error,   brought   an   action   against 
James   Stewart,  on  a  promissory  note  made  by   Holbach  &  Saunders, 
in  favor  of  Stewart,  by  whom  it  was  indorsed.     The  pleas  were 
^^        non  assumpsit  and  payment.     On  the  trial,  the  plaintiff,  in  order 
to  prove  notice  to  the  indorser  of  non-payment  by  the  makers  of  the 
note,  gave  in  evidence  a  protest  made  by  a  notary-public,  under  his  offi- 
cial seal,  certifying  that  he  had  given  such  notice.     The  defendant  then 
produced  the  notary  himself,   who,  on  being  sworn,   testified,  that  the 
protest  was  in  the  handwriting  of  his  son,  who  was  then  on  a  voyage  to 
the  West  Indies;  that  he   (the  notary)   did  not  give  the  notice  himself, 
that  his  son  attended  to  this  business  for  him,  and  that  he  had  no  knowl- 
edge of  the  notice  having  been  given  to  the  indorser  of  the  non-pay- 

9 — Wayne,  J.,  in  Gaines  v.  Relf,  12'ilovf.  to    be    kept,    partly    because    their    contents 

472,     570     (1851):     "Such    writings    [those  are    of    public    interest    and    notoriety,    but 

which   the  law   requires  to  be  kept  for  the  principally    because    they    are    made    under 

public    benefit]    are   admissible    in    evidence  the    sanction    of    an    oath    of    office,    or    at 

on   account   of  their   public   nature,   though  least    under    that    of    official    duty,    by    ac- 

their   authenticity    be   not   confirmed   by   the  credited  agents  appointed   for  that   purpose, 

usual    tests   of   truth,    namely,    the   swearing  Moreover,    as    the   facts   stated   in    them   are 

and    the    cross-examination    of    the    persons  entries   of  a    public    nature,    it    would   often 

who   prepared   them.     They   are   entitled   to  be    difficult    to    prove    them    by    means    of 

this     extraordinary     degree     of    confidence  sworn    witnesses." 
partly    because    they    are    required    by    law 


306 


HEARSAY    rule:     (b)     EXCEPTIONS. 


No.  324. 


ment  by  the  makers,  except  what  his  son  told  him,  who  said  he  had 
given  the  notice,  and  had  written  it  in  the  protest,  and  this  had  been  the 
practice  of  doing  business  among  the  notaries.  The  counsel  for  the 
defendant  contended,  that  the  protest,  as  explained  by  the  witness,  was 
not  evidence  of  notice  to  the  indorser  of  non-payment  by  the  makers. 
The  counsel  for  the  plaintiff  contended,  that  it  was  evidence  of  notice. 

TiLGHMAN^  C.  J.:  "It  was  very  possible,  that  the  jury  might  give 
more  credit  to  the  official  certificate,  than  to  the  oath  of  the  notary;  a 
notary  may  be  tampered  with,  after  giving  his  certificate;  or  the  jury 
might  think  that  the  certificate  and  the  parol  evidence  were  not  incon- 
sistent. In  my  opinion  then,  the  Court  was  right  in  telling  the  jury  as 
they  did  that  the  plaintiff  was  not  entitled  to  recover,  unless  notice  of 
non-payment  was  given  to  the  defendant ;  that  the  notarial  certificate 
was  legal  evidence,  on  which,  together  with  the  parol  evidence,  the  jury 
were  to  decide  whether  notice  had  been  givn  or  not." 

Gibson,  J.,  dissenting:  "Now  put  the  case  of  a  witness  who  has  in 
his  direct  examination  sworn  positively  to  a  fact,  but  from  whom,  on 
being  cross-examined,  it  comes  out  that  he  personally  knows  nothing 
about  the  matter,  having  obtained  all  his  information  from  a  person  on 
whose  veractiy  he  thinks  he  can  depend.  Ought  not  the  Court  to  direct 
the  jury  that  the  whole  of  his  evidence,  taken  with  the  explanation 
given,  is  incompetent  and  goes  for  nothing?  .  .  .  The  assertion  in  a 
[notary's]  protest  of  a  fact  founded  on  hearsay,  which  would  be  in- 
competent to  be  heard  from  a  witness  attending  in  the  ordinary  way,  is 
not  made  competent  and  legal  by  the  Act  of  Assembly.  ,  .  .  The  Legis- 
lature surely  never  intended  to  permit  an  officer  to  authenticate  by  his 
certificate  a  fact  to  which  he  would  not,  after  being  examined  touching 
his  means  of  knowledge,  be  permitted  to  swear.  ...  I  hold  the  notary 
competent  to  certify  only  what  he  personally  knows  to  be  true,  and  not 
what  he  may  conjecture  to  be  so  from  the  relation  of  others.  .  .  .  The 
confidence  supposed  to  be  reposed  in  the  truth  and  integrity  of  those 
officers  by  the  Executive  who  appointed  them  is  the  ground  on  which 
the  Legislature  rested  the  substitution  of  their  certificate  for  the  ordi- 
nary judicial  evidence  of  the  facts  asserted  in  it;  and  it  therefore  never 
could  have  intended  to  permit  them  to  delegate  this  high  personal  trust 
to  a  stranger,  acting  without  oath  or  even  official  responsibility."^" 


8a.      Official  Registers  and  Records. 

KENNEDY  v.  DOYLE  (1865). 
10  All.  161. 
Gray,   J. :   "This  action  was  brought  against  two  sisters  upon  an 
agreement  of  both  to  pay  money  borrowed  by  them  on  their  joint  ac- 
count from  the  plaintiff.     One  of  them  suggested  her  insolvency 
**^       and  set  up  no  other  defence.     The  other  pleaded  infancy  at  the 
time  of  the  agreement.  .  .  .  The  parties  being  at  issue  upon  the  point 

10 — Compare     the     authorities     cited     in   W.,    §    1635. 


No.  325.  8a.  official  records  and  registers.  307 

whether  the  defendant  was  of  age  when  she  made  the  agreement,  the 
plaintiff,  to  prove  that  she  was,  offered  a  book,  which  was  admitted  to 
be  the  church  record  of  baptisms  in  a  Roman  CathoHc  church  in  Lowell, 
regularly  kept  by  McDermott,  the  priest  of  that  church  for  a  series  of 
years,  produced  from  the  custody  of  O'Brien,  the  present  priest,  into 
whose  hands  it  came  upon  the  death  of  McDermott,  and  containing 
the  following  entry  in  McDermott's  handwriting,  and  signed  by  him : 
'1837,  December  17th.  Baptized  Joanna,  born  12th,  of  Michael  and 
Mary  Doyle.  Sponsors,  Jeremiah  Kennedy  and  Bridget  Doyle.'  There 
was  also  evidence  that  the  defendant  in  this  action  was  the  Joanna 
Doyle  named  in  this  record.  It  does  not  appear  to  have  been  denied 
at  the  trial,  and  it  was  assumed  at  the  argument,  that  the  priest  per- 
formed the  rite  of  baptism  and  made  the  entry  upon  the  record  in  the 
discharge  of  his  ecclesiastical  duty  according  to  the  rule  and  custom  of 
his  church.  But  there  was  no  evidence  that  he  was  a  sworn  officer,  or 
that  the  book  was  required  by  law  to  be  kept ;  and  upon  this  ground  the 
defendant  objected  to  its  admission.  The  presiding  judge,  however,  ad- 
mitted it  as  competent  evidence  of  the  date  of  the  baptism  only. 

"In  England,  a  church  record  of  baptisms,  kept  by  a  clergyman  of 
the  Established  Church  is  admissible,  even  before  his  death,  accompa- 
nied by  evidence  of  the  identity  of  the  child,  to  prove  the  date  of  its 
baptism ;  but  not  the  time  of  its  birth,  because  the  clergyman  has  no 
authority  to  make  inquiry  about  the  time  of  birth  or  any  entry  concern- 
ing it  in  the  register:  Draycott  v.  Talbott  (3  Bro.  x^.  C.  (2d  ed.) 
564)  ;  May  v.  May  (2  Stra.  1073)  !  Wihen  v.  Law  (3  Stark.  R.  63),  and 
other  cases  cited  in  Stark.  Ev.  (4th  Eng.  ed.)  299,  note  f . ;  Doe  v. 
Barnes  (i  M.  &  Rob.  389).  In  the  Church  of  England,  from  the  time 
of  the  Reformation,  registers  of  baptisms,  weddings,  and  burials  were 
kept  by  order  of  the  Crown  as  head  of  that  church ;  and  in  the  words 
apphed  by  Lord  Chief  Baron  Gilbert  to  the  original  order  of  Henry  VIII. 
on  this  subject,  'when  a  book  was  appointed  by  public  authority  it  must 
be  a  public  evidence.'  Gilb.  Ev.  (3d.  ed.)  "/j.  ...  The  English  judges,  ad- 
hering to  the  principle  of  admitting  in  evidence  as  public  documents 
those  registers  only  which  the  law  required  to  be  kept,  have  considered 
all  others  as  mere  private  memoranda,  and  have  refused  to  admit  regis- 
ters regularly  kept  by  dissenters  unless  supported  by  the  testimony  of 
the  person  keeping  them  or  other  witnesses :  Birt  v.  Barlow  ( i  Doug. 
171);  Newham  v.  Raithby  (i  Phillim.  R.  315);  Ex  parte  Taylor  (i 
Jac.  &  Walk.  483;  s.  c.  3  Man.  &  Ry.  430  n.)  ;  Doe  v.  Bray  (8  B.  &  C. 
813;  s.  c.  3  Man.  &  Ry.  428)  ;  Whittuck  v.  Waters  (4  C.  &  P.  375). 
Vice  Chancellor  Shadwell  refused  even  to  admit  an  entry  in  the  register 
of  the  Roman  Catholic  chapel  of  the  Sardinian  ambassador  in  London 
as  evidence  of  the  baptism  of  the  ambassador's  son :  D'Aglie'  v.  Fryer 
(13  Law  Journal,  n.  s.  Ch.  398).  'The  principle  on  which  entries  in 
a  register  are  admitted.'  said  Mr.  Justice  Erie  in  a  recent  case,  'depends 
upon  the  public  duty  of  the  person  who  keeps  the  register  to  make  such 


308 


HEARSAY    rule;    (b)    EXCEPTIONS. 


No.  325. 


entries  in  it,  after  satisfying  himself  of  their  truth.'     Doe  v.  Andrews 

(15  Q-  B.  759)- 

"Almost  two  centuries  before  the  passage  of  the  statute  of  Will.  IV., 
the  founders  of  the  Massachusetts  Colony,  though  not  less  attached 
than  other  Englishmen  to  their  own  forms  of  religious  worship,  had 
the  wisdom  to  perceive  that  it  was  more  important  for  the  civil  govern- 
ment to  preserve  exact  records  of  the  dates  of  births  and  deaths,  than 
of  religious  ceremonies  from  which  they  might  be  imperfectly  inferred ; 
and  that  the  importance  of  recording  those  facts  did  not  depend  on  the 
particular  creed  or  church  government  of  the  individual,  but  applied 
equally  to  the  whole  people.  They  accordingly  left  the  baptism  of  the 
living  and  the  burial  of  the  dead  to  the  churches ;  but  by  an  ordinance  of 
1639  enacted  'that  there  be  records  kept  of  the  days  of  every  marriage, 
birth  and  death  of  every  person  within  this  jurisdiction;'  and  similar 
statutes  have  been  ever  since  in  force  in  Massachusetts.  The  record 
of  a  marriage  by  the  justice  of  the  peace  or  minister,  or  the  town  clerk's 
or  registrar's  record  of  births,  marriages,  and  deaths,  kept  as  required 
by  these  statutes,  or  a  duly  certified  copy  of  either,  is  held  competent 
evidence;  2  Dane  Ab.  296;  Milford  v.  Worcester  (7  Mass.  56);  Com- 
monwealth V.  Norcross  (9  Mass.  492).  .  .  .  Similar  decisions  have  been 
made  in  other  States,  generally  upon  the  ground  of  the  record  having 
been  kept  in  the  performance  of  a  duty  imposed  by  law ;  and  those 
cases,  in  the  reports  of  which  no  statute  is  referred  to,  may  yet  have 
controlled  by  statute.  .  .  . 

"It  is  perfectly  true  that  in  this  commonwealth  the  law  makes  no  dis- 
tinction between  different  sects  of  Christians,  and  the  record  of  a 
Roman  Catholic  priest  is  of  no  less  weight  as  evidence  than  that  of  a 
Congregational,  or  Protestant  Episcopal,  or  any  other  minister.  But 
•our  law  not  requiring  any  record  of  baptisms,  the  church  book  offered 
in  evidence  in  this  case,  not  having  been  kept  under  any  requirement 
of  law,  was  not  a  public  record,  and  would  not,  had  the  priest  who 
made  the  entries  been  still  alive,  have  been  admissible  in  evidence,  un- 
supported by  his  testimony. "1 


Chief  Baron  Gilbert,  Evidence,  24,  97  (ante  1726)  :  "Where  the  deed 
needs  enrolment,  there  the  enrolment  is  the  sign  of  the  lawful  execution 
of  such  deed,  and  the  officer  appointed  to  authenticate  such  deeds 
^^^  by  enrolment  is  also  empowered  to  take  care  of  the  fairness  and 
legality  of  such  deeds.  .  .  .  But  where  a  deed  needs  no  enrolment,  there, 
though  it  be  enrolled,  the  inspeximus  of  such  enrolment  is  no  evidence; 
because  since  the  officer  has  no  authority  to  enrol  them,  such  enrolment 
cannot  make  them  public  acts." 

I — Compare   the   authorities   cited   in    W.,   §§    1643-1646. 


No.  328.  8a.  official  records  and  registers.  309 

Thomas  Starkie,  Evidence,  412    (1824)  :   "It  would  be  manifestly 
inconsistent  with  the  plainest  principles  of  justice  to  admit  such  enrol- 
ments to  be  evidence  against  those  who  have  not  acknowledged 
**  them,  without  proof  of  the  execution  of  the  deeds;  .  .  .  and  al- 

though it  appears  that  an  opinion  once  prevailed  to  this  effect,  yet  it 
seems  to  be  so  destitute  of  principle  that  it  is  not  probable  it  would  now 
be  acted  upon." 


EADY  V.   SHIVEY    (1870). 
40  Ga.  684,  686. 

Ejectment.  After  ofifering  the  plaintiff's  affidavits  that  the  originals 
of  their  title-deeds  were  not  in  their  possession  and  were  believed  after 
diligent  search  to  be  lost  or  destroyed,  plaintiff's  attorneys  oft'ered 
**  in  evidence  copies  of  deeds  to  said  lot,  duly  certified  from  the 
records,  from  Eady  to  Thomas  Broddus,  from  Broddus  to  David  Merri- 
wether  and  others,  a  deed  from  them,  the  heirs  of  Broddus,  to  said 
Smith,  and  from  Smith  to  said  Cook.  Defendant's  counsel  objected  to 
these  copies  and  they  were  rejected,  upon  the  ground,  (as  was  said  in 
argument,)  that  there  was  no  oroof  that  such  original  deeds  had  ever 
existed. 

McCay,  J.:  "We  think  the  Court  erred  in  rejecting  the  copy 
deeds.  The  affidavits  conformed  strictly  to  the  forty-second  rule 
of  Court.  It  is  true,  there  was  nothing  in  the  affidavits  affirming, 
directly,  the  existence  and  genuineness  of  the  originals.  We  are  of  the 
opinion  that  this  was  proven  'prima  facie,'  by  the  certified  copies  from 
the  record.  .  .  .  Why  should  not  the  existence  of  a  proper  record  be 
evidence  of  the  existence  and  contents  of  a  lost  original  ?  To  go  to 
record,  a  deed  must  be  pro])ated,  either  executed  or  acknowledged  be- 
fore a  magistrate,  or  proven  by  the  affidavit  of  one  of  the  witnesses. 
The  very  object  of  the  record  is  to  preserve  a  copy  of  the  deed  to  be 
used  if  the  original  is  lost  or  destroyed ;  and  it  would  largely  lessen  the 
uses  of  a  record  if  it  were  necessary  before  it  could  be  used  to  prove 
the  existence  of  the  original  by  any  other  evidence.  .  .  .  Unless  there  be 
forgery  or  false  swearing,  nothing  but  a  genuine  existing  deed  can  go 
upon  the  record  properly,  and  the  copy  will  show  upon  its  face  if  the 
requirements  of  the  statute  have  been  complied  with.  We  recognize 
fully  the  rule  that  the  genuineness  and  existence  of  an  original  must 
be  shown  before  the  contents  of  it  can  be  shown  by  secondary  evidence. 
But  in  our  judgment  this  is  done  by  evidence  that  there  is  a  duly  exe- 
cuted record  of  what  purported  to  be  an  original  duly  probated  accord- 
ing to  law."2 

2 — Mills,  J.,  in   Womack  v.  Hughes.  Litt.  ex  parte  authentication  which  entitles  it  to 

Sel.  C.  291,  294   (1821):   "The  Acts  direct-  a    place    on    its    own    record;    nor    is    there 

ing    the    mode    of    recording    deeds    do    not  any    statutory    provision    which    so    directs, 

direct    that    they    shall    thereafter    be    given  within    the   recollection    of  the    Court.      But 

in   evidence    in    any   court    on    the    trial    of  the    common-law    principle    relative    to    en- 

an  issue  without  any  other  proof  than  the  rolled  deeds  has  been  uniformly  applied  by 


310 


HEARSAY    rule:     (b)     EXCEPTIONS. 


No.  329. 


Statutes.  California,  C.  C.  P.  1872,  §  1919:  "A  public  record  of  a 
private  writing  may  be  proved  by  the  original  record,  or  by  a  copy 
thereof,  certified  by  the  legal  keeper  of  the  record."  lb.  §  195 1  as 
*"'  amended  by  St.  1889,  no.  45 :  "Every  instrument  conveying  or  af- 
fecting real  property,  acknowledged  or  proved  and  certified  as  provided  in 
the  Civil  Code"  may  be  read  "without  further  proof" ;  "also,  the  original 
record  of  such  conveyance  or  instrument  thus  acknowledged  or  proved, 
may  be  read  in  evidence,  with  the  like  effect  as  the  original  instrument, 
without  further  proof." 

Georgia,  Code  1895,  §  3^28 :  a  "registered  deed  shall  be  admitted  in 
evidence.  .  .  .  without  further  proof,"  unless  the  maker  or  heir  or  op- 
ponent makes  affidavit  that  it  is  a  forgery,  whereon  an  issue  of  genuine- 
ness shall  be  tried. 

Illinois,  Rev.  St.  1874,  c.  30,  §20:  For  deeds,  etc.,  without  the  State 
and  within  the  United  States  or  any  Territory  or  dependency  or  the 
District  of  Columbia,  an  acknowledgment  or  proof  may  be  made  "in 
conformity  with  the  laws  of  the  State,  Territory,  dependency,  or  Dis- 
trict where  it  is  made" ;  and  "if  any  clerk  of  a  court  of  record  within 
such  State,  Territory,  dependency,  or  District  shall  under  his  hand  and 
the  seal  of  such  court  certify"  to  the  conformity  of  the  acknowledgment, 
or  the  conformity  shall  appear  by  the  laws  thereof,  "such  instrument, 
or  a  duly  proved  and  certified  copy  of  the  record  of  such  deed,  mortgage, 
or  other  instrument  relating  to  real  estate,  heretofore  or  hereafter  made 
and  recorded  in  the  proper  county,  may  be  read  in  evidence  as  in  other 
cases  of  such  certified  copies." 

New  York,  C.  C.  P.  1877,  §  935 :  A  duly  recorded  conveyance  is  prov- 
able by  the  record  or  by  a  certified  copy,  "without  further  proof" ;  unless 
proof  was  taken  on  the  oath  of  "an  interested  or  incompetent  witness."^ 


8b.      Official  Reports  and  Returns. 

ELLICOTT  V.  PEARL  (1836). 
10  Pet.  412,  441. 
Ejectment  for  a  tract  of   1000  acres  of  land  originally  granted  to 
James  Kincaid.     Story,  J.:  "The  tenants,  in  order  to  prove  the  boun- 
daries of  the  demandants'  land,  as  laid  down  in  the  plat,  and 

OOA 

**'*"  claimed  by  them ;  gave  in  evidence  the  original  plats  and  certifi- 
cates of  survey  of  Kincaid's  two  thousand  and  one  thousand  acre  tracts ; 
and  then  examined  M'Neal,  a  witness  of  the  demandants,  who  was  first 


this  Court  to  deeds  recorded  according  to 
our  statutes.  It  is  not,  however,  every 
placing  a  deed  upon  record  which  makes 
it  a  recorded  deed.  The  statutes  usually 
point  out  the  officer  or  Court  before  whom 
the  deed  is  to  be  acknowledged,  what  the 
acknowledgment  shall  consist  of,  and  how 
and  to  whom  it  shall  be  certified,  and  they 


are  equally  positive  as  to  the  time  in 
which  the  different  acts  shall  be  done. 
Within  these  periods  the  recording  offi- 
cers have  authority  to  record  the  instru- 
ment;   afterwards,    such   authority   ceases." 

3 — Compare   the   authorities  cited   in   W., 
§§    1648-1655,    and    Nos.    242-4,    ante. 


No.  331.  8b.  official  reports  and  returns.  311 

introduced  to  prove  their  boundary:  who  stated  that  the  water  courses, 
as  found  on  the  ground,  did  not  correspond  with  those  represented  on 
the  said  plats :  and  after  being  examined  by  the  demandants,  for  the 
purpose  of  proving  that  the  marks  on  the  trees,  claimed  by  them  as  the 
corner  and  lines  of  their  surveys,  were  as  ancient  as  the  said  surveys, 
and  also  as  to  the  position  and  otherwise  of  the  lines  and  corners 
claimed  by  them,  and  represented  on  the  plat  made  and  used  at  the  trial : 
stated,  on  the  cross-examination  of  the  tenant's  counsel,  that  some  of 
the  lines,  marked  to  suit  the  calls  of  the  said  surveys,  appeared  to  be 
younger,  and  others,  from  their  appearance,  might  be  as  old  as  the  date 
of  the  said  plats.  The  demandants,  to  counteract  this  evidence,  and 
to  sustain  their  claim,  offered  in  evidence  a  survey,  made  out  by  M'Neal, 
in  an  action  of  ejectment  formerly  depending  between  the  same  parties 
for  the  same  land,  of  which  survey  Pearl  had  due  notice.  The  tenants 
objected  to  the  reading  of  the  explanatory  report  accompanying  this  sur- 
vey, and  the  Court  refused  to  allow  so  much  thereof  as  stated  the  ap- 
pearance as  to  age  and  otherwise  of  the  lines  and  corners  to  go  in 
evidence  to  the  jury;  and  accordingly  caused  to  be  erased  from  the  plat 
the  words  following,  viz.  'ancient'  (chops)  ; — 'John  Forbes,  Jun.,  states 
he  cut  the  same  letters  and  figures ;' — 'on  the  east  side,  the  chops  appear 
to  have  been  marked  with  a  larger  axe,  than  the  chops  on  the  beginning 
tree;' — and  then  permitted  the  residue  of  the  report  and  plat  to  go  in 
evidence.     This  constitutes  the  third  exception  of  the  demandants. 

"We  are  of  opinion,  that  there  v^^as  no  error  in  this  refusal  of  the 
Court.  The  evidence  was  inadmissible  upon  general  principles.  It 
was  mere  hearsay.  The  survey,  made  by  a  surveyor,  being  under  oath 
[of  office]  is  evidence  as  to  all  things  which  are  properly  within  the 
line  of  his  duty.  But  his  duty  is  confined  to  describing  and  marking  on 
the  plat  the  lines,  corners,  trees,  and  other  objects  on  the  ground,  and 
to  subjoin  such  remarks  as  may  explain  them.  But  in  all  other  respects, 
and  as  to  all  other  facts,  he  stands,  like  any  other  witness,  to  be  exam- 
ined on  oath  in  the  presence  of  the  parties  and  subject  to  cross-exami- 
nation. ...  It  has  never  been  supposed  that  if  in  such  a  survey  the 
surveyor  should  go  on  to  state  collateral  facts,  or  declarations  of  the 
parties,  or  other  matters  not  within  the  scope  of  his  proper  official 
functions,  he  could  thereby  make  them  evidence  as  between  third  per- 
sons."* 


JONES  V.  GUANO  CO.  (1894). 
Q4  Ga.  14,  20  S.  E.  265. 
Action  on  a  promissory  note  for  the  price  of  guano.     To  prove  the 
quality,   an  analysis  by  the  state  chemist  was  offered.     Lumpkin,  J.: 
"Section  1553b  of  the  Code  declares  that  'a  copy  of  the  official 
****         analysis  of  any  fertilizer  or  chemical,  under  seal  of  the  depart- 
ment of  agriculture,  shall  be  admissible  as  evidence  in  any  of  the  courts 

4 — Compare  the  authorities  cited   in  W.,   §§    1665,    1672. 


312 


HEARSAY    rule:     (b)     EXCEPTIONS. 


No.  331. 


of  this  state,  on  the  trial  of  any  issue  involving  the  merits  of  said  fer- 
tilizer.' As  it  requires  express  legislation  to  render  any  copy  of  an 
analysis  of  a  fertilizer  admissible  as  original  evidence,  necessarily  the 
terms  o:^  the  law  must  be  fully  and  exactly  complied  with,  in  order  to 
obtain  the  benefit  of  its  provisions.  Therefore,  the  analysis  must  be 
an  official  one,  or  a  copy  of  it  taken  from  the  records  of  the  department 
of  agriculture  cannot  be  introduced.  As  we  understand  our  system  for 
the  inspection  and  analysis  of  commercial  fertilizers,  samples  are  taken 
by  the  inspectors,  and  submitted  for  analysis  to  the  state  chemist,  who 
makes  reports  to  the  commissioner  of  agriculture,  which  reports  are  re- 
corded in  the  office  of  the  latter.  Analyses  thus  made  are  official..  We 
know  of  no  law  making  official  an  analysis  by  the  state  chemist  at  the 
instance  or  request  of  a  purchaser  of  fertilizers.  Indeed,  as  we  under- 
stand it,  the  state  chemist  is  under  no  obligation  to  make  an  analysis  for 
any  private  person  at  all.  If  he  does  so,  it  is  simply  a  matter  of  cour- 
tesy ;  and  although  he  may  report  an  analysis  thus  made  to  the  depart- 
ment of  agriculture  and  it  may  be  entered  upon  the  records  of  that 
department,  this  will  not  give  to  that  analysis  an  official  character  by 
virtue  of  which  a  copy  of  it  will  be  rendered  admissible  as  evidence 
in  the  courts."^ 


332 


8c.      Official  Certificates. 

OMICHUND   V.   BARKER    (1744). 

Willcs  538,  549. 

WiLLES,  L.  C.  J.  (disapproving  the  latter  part  of  the  ruling  in 
Alsop  V.  Bowtrell  (Cro.  Jac.  541),  where  a  foreign  clergyman's  certifi- 
cate was  admitted  to  show  not  only  his  performance  of  the  mar- 
riage ceremony,  but  also  the  parties'  subsequent  cohabitation)  : 
"For  our  law  never  allows  a  certificate  of  a  mere  matter  of  fact,  not 
coupled  with  any  matter  of  law,  to  be  admitted  as  evidence.  Even  the 
certificate  of  the  King  under  his  sign  manual  of  a  matter  of  fact  (ex- 
cept in  one  old  case  in  Chancery)  has  been  always  refused.  .  .  .  Be- 
sides, it  is  not  the  best  evidence  that  the  nature  of  the  thing  will  admit; 
but  the  proper  and  usual  evidence  of  a  fact  arising  beyond  sea  is  an 
affidavit  or  deposition  taken  before  a  public  notary  and  certified  to  be 
so  under  the  seal  of  the  place  or  the  principal  officer  of  the  place ;  which 
had  been  admitted  as  evidence  in  some  cases,  where  it  would  be  too 
expensive,  considering  the  nature  of  the  cause,  to  take  out  a  special 
commission  [for  a  deposition]."^ 


5 — Compare  the  authorities  cited  in  W., 
§    1664. 

6 — Devens,  J.,  in  Com.  v.  Richardson, 
142  Mass.  74,  7  N.  E.  z6  (1886):  "As 
to  matters  which  the  officer  is  not  author- 
ized   by    law    to    attest,    his    certificate    is 


extra-official,  can  have  no  higher  weight 
than  that  of  a  private  citizen,  and  is  there- 
fore inadequate  to  make  the  proof  re- 
quired." 

Compare   the   authorities  cited   in    W.,   § 
1674. 


No.  333.  8c.  OFFICIAL  CERTIFICATES.  313 

TOWNSLEY  V.  SUMRALL  (1829). 

2  Pet.  ijo,  178. 

Story,  J. :  "The  original  action  was  brought  by  the  defendant  in 
error  against  the  plaintiff  in  error,  as  one  of  the  firm  of  Thomas  F. 
Townsley  &  Co.,  to  recover  the  amount  of  a  bill  of  exchange, 
******  drawn,  at  Maysville  in  Kentucky,  on  the  27th  of  November,  1827, 
by  one  Richard  S.  Waters,  on  Messrs.  Townsley  &  Co.,  at  New  Orleans, 
at  120  days  after  date  for  $2000,  payable  to  Sumrall  or  order,  which  had 
been  dishonored  by  the  drawees.  .  .  .  The  bill  of  exceptions  stated,  that 
the  plaintiff  offered  in  evidence  the  bill  of  exchange  and  the  protest  of 
the  notary  public  at  New  Orleans,  to  which  evidence  the  defendant 
objected,  but  the  court  admitted  the  testimony.  .  .  .  The  first  question 
that  arises  is  upon  the  admissibility  of  the  protest  of  the  notary  public 
at  New  Orleans,  as  proof  of  the  dishonour  of  the  bill.  The  protest  is 
for  non-payment  for  want  of  funds ;  and  it  does  not  appear  that  there 
had  been  any  prior  protest  for  non-acceptance.  Bills  of  exchange  pay- 
able at  a  given  day  after  date,  need  not  be  presented  for  acceptance 
at  all ;  and  payment  may  at  once  be  demanded  at  their  maturity. 
The  objection  now  made  does  not  turn  upon  this  point,  but  upon  the 
point,  that  the  present  is  not  a  foreign,  but  an  inland  bill  of  exchange; 
being  drawn  in  Kentucky,  and  payable  at  New  Orleans  in  Louisiana; 
and  that  a  notarial  protest  is  not  in  such  cases  evidence  of  a  demand 
and  refusal  of  payment.  We  do  not  think  it  necessary  in  this  case  to 
decide,  whether  a  bill  drawn  in  one  state  upon  persons  resident  in  an- 
other state,  within  the  union,  is  to  be  deemed  a  foreign,  or  an  inland 
bill  of  exchange.  ...  It  is  admitted,  that  in  respect  to  foreign  bills  of 
exchange  the  notarial  certificate  of  protest  is  of  itself  sufficient  proof 
of  the  dishonour  of  a  bill  without  any  auxiliary  evidence.  It  has  long 
been  adopted  into  the  jurisprudence  of  the  common  law,  upon  the  ground 
that  such  protests  are  required  by  the  custom  of  merchants ;  and  being 
founded  in  public  convenience,  they  ought,  every  where,  to  be  allowed 
as  evidence  of  the  facts  which  they  purport  to  state.  The  negotiability 
of  such  bills,  and  the  facility  as  well  as  certainty  of  the  proof  of  dis- 
honour, would  be  materially  affected  by  a  different  course;  a  foreign 
merchant  might  otherwise  be  compelled  to  rely  on  mere  parol  proof  of 
presentment  and  dishonour,  and  be  subjected  to  many  chances  of  delay, 
and  sometimes  to  absolute  loss,  from  the  want  of  sufficient  m.eans  to 
obtain  the  necessary  and  satisfactory  proofs.  The  rule,  therefore,  be- 
ing foiinded  in  public  convenience,  has  been  ratified  by  courts  of  law  as 
a  binding  usage.  But  where  parties  reside  in  the  same  kingdom  or 
country,  there  is  not  the  same  necessity  for  giving  entire  verity  and 
credit  to  the  notarial  protest.  The  parties  may  produce  the  witnesses 
upon  the  stand,  or  compel  them  to  give  their  depositions.  And  accord- 
ingly, even  in  cases  of  foreign  bills,  drawn  upon,  and  protested  in  an- 
other country,  if  the  protest  has  been  made  in  the  country  where  the 


314 


HEARSAY    rule:    (b)    EXCEPTIONS. 


No.  333. 


suit  is  brought;  courts  of  justice  sitting  under  the  common  law,  require 
that  the  notary  himself  should  be  produced  if  within  the  reach  of 
process,  and  his  certificate  is  not  per  se  evidence.  This  was  so  held  by 
lord  Ellenborough,  in  Chesmer  vs.  Noyes,  2  Campbell's  R.  129.  It 
is  not  disputed,  that  by  the  general  custom  of  merchants  in  the  United 
States,  bills  of  exchange  drawn  in  one  state  on  another  state,  are,  if 
dishonoured,  protested  by  a  notary;  and  the  production  of  such  protest 
is  the  customary  document  of  the  dishonour.  It  is  a  practice  founded 
in  general  convenience,  and  has  been  adopted  for  the  same  reasons 
which  apply  to  foreign  bills  in  the  strictest  sense.  The  distance  be- 
tween some  of  these  states,  and  the  difficulty  of  obtaining  other  evi- 
dence, is  far  greater  than  between  England  and  France,  or  between 
the  continental  nations  of  Europe,  where  the  general  rule  prevails. 
We  think  upon  this  ground  alone,  the  reason  for  admitting  foreigai 
protests  would  apply  to  cases  like  the  present,  and  furnish  a  just 
analogy  to  govern  it.  .  .  .  Wherever  a  protest  is  required  to  fix  the 
title  of  the  parties;  or  by  the  custom  of  merchants  is  used  to  establish 
a  presentment  or  dishonour  of  a  bill;  it  is  competent  evidence  between 
the  parties,  who  contract  with  reference  to  the  presentment  and  dis- 
honour of  such  bill."^ 


KIDD'S  ADMINISTRATOR  v.  ALEXANDER'S  ADMINISTRATOR 

(1823). 

I  Rand.  456. 

Action  on  a  bond.  The  deposition  of  one  John  Scott,  a  transferee, 
was  objected  to  on  the  ground  of  his  interest.  Before  his  deposition 
was  taken,  Israel  and  John  Pleasants  executed  a  release  to  Scott 
****  under  their  seal,  relinquishing  all  claim  on  the  said  Scott,  on 
account  of  the  transfer  of  the  bond  to  them.  The  execution  of  this 
release,  was  certified  by  John  Gill,  notary  public  of  the  state  of  Mary- 
land, in  the  form  in  which  notarial  acts  are  usually  executed.  .  . 

Brooke,  J.:  "The  Court  not  deciding  whether,  if  proved,  the  release 
in  the  record  would  be  effectual  to  bind  the  late  house  of  Israel  and 
John  P.  Pleasants,  is  of  opinion,  that  the  certificate  of  the  notary  public, 
John  Gill,  that  John  P.  Pleasants,  partner  in  the  late  house  of  Israel 
and  John  P.  Pleasants,  acknowledged  it  to  be  his  act  and  deed,  was 
inadmissible  evidence  to  prove  the  execution  of  the  said  release.  To 
effect  that  object,  the  deposition  of  the  notary  public,  or  some  equiva- 
lent testimony  ought  to  be  before  the  court.  In  the  absence  of  such 
proof,  the  court  is  of  opinion,  that  John  Scott,  the  assignee  of  the 
bond  in  question,  was  an  incompetent  witness,  and  his  deposition  and 
affidavit,    also   inadmissible   testimony." 

7 — Compare  the  authorities  cited  in  W.,   §   1675. 


No.  336,  8c.     OFFICIAL    CERTIFICATES     AND     COPIES.  315 

Statutes:  California,  C.  C.  P.  1872,  §  1948:  "Every  private  writ- 
ing, except  last  wills  and  testaments,  may  be  acknowledged  or  proved 
and  certified"  like  conveyances  of  realty,  and  the  certificate  is 
*      evidence  of  execution. 

Illinois,  Rev.  St.  1874,  c.  30,  §  35 :  An  instrument  affecting  land, 
duly  acknowledged  or  proved,  "whether  the  same  be  recorded  or  not, 
may  be  read  in  evidence  without  any  further  proof  of  the  execution 
thereof." 

Iowa,  Code  1897,  §  4621 :  "Every  private  writing,  except  a  last  will 
and  testament,  after  being  acknowledged  or  proved  and  certified  in  the 
manner  prescribed  for  the  proof  or  acknowledgment  of  conveyances 
of  real  property,  may  be  read  in  evidence  without  further  proof."* 


BuLLER,  J.,  Trials  at  Nisi  Prius,  229  (ante  1767)  :  "Here  a  dififer- 
ence  is  to  be  taken  between  a  copy  authenticated  by  a  person  trusted  for 
that  purpose,  for  there  that  copy  is  evidence  without  proof ;  and 
a  copy  given  out  by  an  officer  of  the  court,  who  is  not  trusted  for 
that' purpose,  which  is  not  evidence  without  proving  it  actually  examined. 
The  reason  of  the  difference  is,  that  where  the  law  has  appointed  any 
person  for  any  purpose,  the  law  must  trust  him  as  far  as  he  acts  under 
its  authority ;  therefore  the  chirograph  of  a  fine  is  evidence  of  such 
fine,  because  the  chirographer  is  appointed  to  give  out  copies  of 
the  agreements  between  the  parties  that  are  lodged  of  record.  So 
where  the  deed  is  inrolled,  the  indorsement  of  the  inrolment  is  evidence 
without  further  proof  of  the  deed,  because  the  officer  is  intrusted  to 
authenticate  such  a  deed  by  inrolment ;  but  if  the  officer  of  the  court 
make  out  a  copy,  when  he  is  not  intrusted  to  that  purpose,  they  ought 
to  prove  it  examined,  because  being  no  part  of  his  office,  he  is  but  a 
private  man,  and  a  private  man's  mere  writing  ought  not  to  be  cred- 
ited without  an  oath.  Therefore  it  is  not  enough  to  give  in  evidence 
a  copy  of  a  judgment,  though  it  be  examined  by  the  clerk  of  the  Treas- 
ury, because  it  is  no  part  of  the  necessary  office  of  clerk,  for  he  is  only 
intrusted  to  keep  the  records  for  the  benefit  of  all  men's  perusal,  and 
not  to  make  out  copies  of  'them.  So  if  the  deed  inrolled  be  lost,  and 
the  clerk  of  the  peace  make  out  a  copy  of  the  inrolment,  that  is  no 
evidence  without  proving  it  examined ;  because  the  clerk  is  intrusted 
to  authenticate  the  deed  itself  by  inrolment,  and  not  to  give  out  copies 
of  the  inrolment.  The  office  copies  of  depositions  are  evidence  in  chan- 
cery, but  not  at  common  law  without  examination  with  the  roll ;  for 
though  that  Court  have,  for  their  own  convenience,  impowered  their 
officers  to  make  out  such  copies  as  should  be  evidence ;  yet  the  particu- 
lar rules  of  their  courts  are  not  taken  notice  of  by  the  courts  of  com- 
mon law,  and  therefore  they  are  not  evidence  in  those  courts." 

8 — Compare  the  authorities  cited  in  W.,   §    1676;    and    Nos.    328,    329,    ante. 


316 


HEARSAY   rule:    (b)    EXCEPTIONS. 


No.  337. 


UNITED  STATES  v.  PERCHEMAN    (1833). 

7  Pet.  51,  85. 

Marshall,  C.  J.:  "This  is  an  appeal  from  a  decree  pronounced 
by  the  judge  of  the  superior  court  for  the  district  of  East  Florida, 
confirming  the  title  of  the  appellee  to  two  thousand  acres  of 
'*'**  land  lying  in  that  territory,  which  he  claimed  by  virtue  of  a 
grant  from  the  Spanish  governor  made  in  December  1815.  ...  At  the 
trial  the  counsel  for  the  claimant  offered  in  evidence  a  copy  from  the 
office  of  the  keeper  of  public  archives,  of  the  original  grant  on  which 
the  claim  is  founded,  to  the  receiving  of  which  in  evidence  the  attor- 
ney for  the  United  States  objected,  alleging  that  the  original  grant 
itself  should  be  procured,  and  its  execution  proved.  This  objection 
was  overruled  by  the  court,  and  the  copy  from  the  office  of  the  keeper 
of  the  public  archives,  certified  according  to  law,  was  admitted.  The 
attorney  for  the  United  States  excepted  to  this  opinion.  It  appears, 
from  the  words  of  the  grant,  that  the  original  was  not  in  possession 
of  the  grantee.  The  decree  which  constitutes  the  title,  appears  to  be 
addressed  to  the  officer  of  the  government  whose  duty  it  was  to  keep 
the  originals  and  to  issue  a  copy.  ...  It  appears  too  from  the  opinion 
of  the  judge,  'that  by  an  express  statute  of  the  territory,  copies  are 
to  be  received  in  evidence.'  .  .  .  Whether  these  acts  be  or  be  not  con- 
strued to  authorize  the  admission  of  the  copies  offered  in  this  cause; 
we  think  that,  on  general  principles  of  law,  a  copy  given  by  a  public 
officer  whose  duty  it  is  to  keep  the  original,  ought  to  be  received  in 
evidence."® 


Statutes:  England,  1851,  St.  14  &  15  Vict.  c.  99,  Lord  Brougham's 
Act,  §  14:  "Whenever  any  book  or  other  document  is  of  such  a  public 
nature  as  to  be  admissible  in  evidence  on  its  mere  production 
"•'^  from  the  proper  custody,  and  no  statute  exists  which  renders 
its  contents  provable  by  means  of  a  copy,  any  copy  thereof  or  extract 
therefrom  shall  be  admissible  in  evidence  in  any  court  of  justice  .  .  ., 
provided  it  be  proved  to  be  an  examined  copy  or  extract,  or  provided 
it  purport  to  be  signed  or  certified  as  a  true  copy  or  extract  by  the 
officer  to  whose  custody  the  original  is  intrusted." 

California,  C.  C.  P.  1872,  §  1893 :  A  certified  copy  by  "every  public 
officer  having  custody  of  a  public  writing  which  a  citizen  has  a  right  to 
inspect,"  is  admissible  "with  like  efifect  as  the  original  writing."  lb., 
§  190 1 :  A  certified  copy  of  a  "written  law  or  other  public  writing  of 
any  State  or  country,"  by  "the  officer  having  charge  of  the  original," 
under  the  public  seal  of  the  State  or  country,  is  receivable."  lb.,  §  1918 : 
"Other  official  documents  may  be  proved  as  follows:  i,  Acts  of  the 
Executive  of  the  State,  by  the  records  of  the  State  department  of  the 

9 — Compare  the  authorities  cited  in  W.,  §§    1677,    1680. 


Ko.  338.  8c.     OFFICIAL  (certified)  copies.  317 

State ;  and  of  the  United  States,  by  the  records  of  the  state  depart- 
ment of  the  United  States,  certified  by  the  heads  of  those  departments 
respectively.  ...  2,  The  proceedings  of  the  Legislature  of  tliis  State, 
or  of  Congress,  by  the  journals  of  those  bodies  respectively,  or  either 
house  thereof,  or  by  published  statutes  or  resolutions,  or  by  copies 
certified  by  the  clerk.  ...  3,  The  acts  of  the  Executive,  or  the  pro- 
ceedings of  the  Legislature  of  a  sister  State,  in  the  same  manner ;  4, 
The  acts  of  the  Executive,  or  the  proceedings  of  the  Legislature  of  a 
foreign  country,  ...  by  a  copy  certified  under  the  seal  of  the  country 
or  sovereign,  or  by  a  recognition  thereof  in  some  public  act  of  the 
Executive  of  the  United  States ;  5,  Acts  of  a  municipal  corporation  of 
this  State,  or  of  a  board  of  department  thereof,  by  a  copy,  certified 
by  the  legal  keeper  thereof.  ...  6,  Documents  of  any  other  class  in 
this  State,  by  the  original,  or  by  a  copy,  certified  by  the  legal  keeper 
thereof;  7,  Documents  of  any  other  class  in  a  sister  State,  by  the 
original,  or  by  a  copy  certified  by  the  legal  keeper  thereof,  together 
with  a  certificate  of  the  Secretary  of  State,  judge  of  the  supreme, 
superior,  or  county  court,  or  mayor  of  a  city  of  such  State,  that  the 
copy  is  duly  certified  by  the  officer  having  the  legal  custody  of  the 
original ;  8,  Documents  of  any  other  class  in  a  foreign  country,  by 
the  original,  or  by  a  copy  certified  by  the  legal  keeper  thereof,  with 
a  certificate,  under  seal  of  the  country  or  sovereign,  that  the  document 
is  a  valid  and  subsisting  document  of  such  country,  and  that  the  copy 
is  dul}'  certified  by  the  officer  having  the  legal  custody;  9,  Documents 
in  the  departments  of  the  United  States  government,  by  the  certificates 
of  the  legal  custodian  thereof." 

Iowa,  Code  1897,  §  4635 :  "Duly  certified  copies  of  all  records  and 
entries  or  papers  belonging  to  any  public  office  or  by  authority  of  law 
required  to  be  filed  therein,"   are  admissible. 

United  States,  Rev.  St.  1878,  §905  (St.  1790,  May  26):  "The 
acts  of  the  Legislature  of  any  State  or  Territory,  or  of  any  country 
subject  to  the  jurisdiction  of  the  United  States,  shall  be  authenticated 
by  having  the  seals  of  such  State,  Territory,  or  country  affixed  there- 
to." lb.,  §906  (St.  1804,  March  27):  "All  records  and  exemplifica- 
tions of  books  which  may  be  kept  in  any  public  office  of  any  State  or 
Territory  or  of  any  country  subject  to  the  jurisdiction  of  the  United 
States,  not  appertaining  to  a  court,  shall  be  proved  or  admitted  in  any 
court  or  office  in  any  other  State  or  Territory  or  in  any  such  coun- 
try, by  the  attestation  of  the  keeper  of  the  said  records  or  books,  and 
the  seal  of  his  office  annexed,  if  there  be  a  seal,  together  with  a 
certificate  of  the  presiding  justice  of  the  court  of  the  county,  parish, 
or  district  in  which  such  office  may  be  kept,  or  of  the  governor,  secre- 
tary of  state,  the  chancellor  or  keeper  of  the  great  seal,  of  the  State 
or  Territory  or  country,  that  the  said  attestation  is  in  due  form  and 
by  the  proper  officers.  If  the  said  certificate  is  given  by  the  presiding 
justice  of  a  court,  it  shall  be  further  authenticated  by  the  clerk  or 
prothonotary  of  the  said  court,  who  shall  certify,  under  his  hand  and 


318  HEARSAY  rule:   (b)  exceptions.  No.  338. 

the  seal  of  his  office,  that  the  said  presiding  justice  is  duly  commis- 
sioned and  qualified;  or,  if  given  by  such  governor,  secretary,  chan- 
cellor, or  keeper  of  the  great  seal,  it  shall  be  under  the  great  seal  of 
the  State,  Territory,  or  country  aforesaid  in  v^hich  it  is  made." 


Chief  Baron  Gilbert,  Evidence,  ii  {ante  1726) :  "The  next  thing 
is  the  copies  of  all  other  records  [than  statutes]  and  they  are  two- 
fold :  under  seal,  and  not  under  seal.  First,  under  seal ;  and 
**'*''  these  are  called  by  a  particular  name,  Exemplifications,  and  are  of 
better  credence  than  any  sw^orn  copy;  for  the  Courts  of  justice  that 
put  their  seals  to  the  copy  are  supposed  more  capable  to  examine  and 
more  critical  and  exact  in  their  examinations  than  any  other  person 
is  or  can  be;  and  besides  there  is  more  credit  to  be  given  to  their  seal 
than  to  the  testimony  of  any  private  person.  .  .  .  Exemplifications  are 
twofold:  under  the  Broad  Seal,  or  under  the  seal  of  the  Court.  .  .  . 
When  a  record  is  exemplified  under  the  Great  Seal,  it  must  either  be 
a  record  of  the  Court  of  Chancery,  or  be  sent  for  by  a  certiorari  into 
the  Chancery  (which  is  the  centre  of  all  Courts),  and  from  thence 
the  subjects  receive  a  copy  under  the  attestation  of  the  Great  Seal; 
for  in  the  first  distribution  of  the  Courts,  the  Chancery  lield  the  Broad 
Seal,  from  whence  the  authority  issued  to  all  proceedings,  and  those 
proceedings  cannot  be  copied  under  the  Great  Seal  unless  they  come 
into  the  Court  where  that  seal  is  lodged.  .  .  .  The  second  sort  of 
copies  under  seal  are  the  exemplifications  under  the  seal  of  the  Court, 
and  these  are  of  higher  credit  than  a  sworn  copy.  .  .  .  Seals  of  public 
credit  are  the  seals  of  the  King  and  of  the  public  Courts  of  justice, 
time  out  of  mind.  .  .  .  But  the  seals  of  private  Courts  or  of  private 
persons  are  not  full  evidence  by  themselves  without  an  oath  concur- 
ring to  their  credibility.  .  .  .  The  second  sort  of  copies  are  those  that 
are  not  under  seal,  and  these  are  of  two  sorts,  sworn  copies,  and  office- 
copies.  ...  A  copy  given  out  by  the  officer  of  the  Court  that  is  not 
trusted  to  the  purpose  ...  is  not  evidence  without  proving  it  actually 
examined."^*' 


CHURCH  V.  HUBBART    (1804). 

2  Cr.  186,  2^8. 

Action  on   policies   of   marine  insurance;   defence,   that  the  vessels 

were  seized  by  the  Portuguese  and  condemned  for  illicit  trade,  within 

the  exceptions  of  liability  in  the  policy.     To  prove  this  defence, 

***"      certain   laws  and   proceedings  were  offered,   with  the  following 

certificates  of  copy:   "I,   William  Jarvis,   consul  of  the  United   States 

10 — Mansfield,  L.  C.  J.,  in  Denn  v.  Ful-  does   it   appear   that   it  is   necessary  that   a 

ford,   2  Burr.    1177,   1179    (1761),  admitting  copy    of    a    proceeding    in    Chancery,    given 

an    examined    copy    of    a    Chancery      bill,  in    evidence,    must    be   an    office-copy?  .  .  . 

and    interpreting    the    stamp    law:       "How  An    office-copy    is,    in    the    same    court   and 


No.  340.  8c.     OFFICIAL  (certified)  copies.  319 

of  America,  in  this  city  of  Lisbon,  &c.,  do  hereby  certify  to  all  whom 
it  may  or  doth  concern,  that  the  law  in  the  Portuguese  language,  here- 
unto annexed,  dated  from  i8th  March,  1605,  is  a  true  and  literal 
copy  from  the  original  law  of  this  realm  of  that  date,  prohibiting  the 
entry  of  foreign  vessels  into  the  colonies  of  this  kingdom,  and  as  such, 
full  faith  and  credit  ought  to  be  given  it  in  courts  of  judicature  or 
elsewhere.  I  further  certify,  that  the  foregoing  is  a  just  and  true 
translation   of   the   aforesaid  law. 

<'In  testimony  whereof,  I  have  hereunto  set  my  hand  and  affixed  my 
seal  of  office,  at  Lisbon,  this  12th  day  of  April,  1803. 

(Signed  )  "William  Jarvis." 

"Para,  27th  June,  1801.  D.  Jono  de  Almeida  de  Mello  de  Castro, 
of  the  Council  of  State  of  the  Prince  Regent  our  Lord  and  his  Min- 
ister and  Secretary  of  State  of  the  foreign  affairs  and  war  depart- 
ments, &c.  do  hereby  certify  that  the  present  is  a  faithful  copy  taken 
from  the  original  deeds  relative  to  the  brig  Aurora.  In  witness  where- 
of I  order  this  attestation  to  be  passed  and  goes  by  me  signed  and 
sealed  with  the  seal  of  my  arms.     Lisbon  the  27th  January,  1803. 

(Signed)  "D.  Jono  de  Almeida  de  Mello  de  Castro." 

"I  William  Jarvis,  Consul  of  the  United  States  of  America  in  this 
city  of  Lisbon,  &c.  do  hereby  certify  unto  all  whom  it  may  concern 
that  the  foregoing  is  a  true  and  just  translation  of  a  copy  from  the 
proceedings  against  the  brig  Aurora,  Nathaniel  Shaler,  master,  at  Para 
in  the  Brazils  which  is  hereto  annexed  and  attested  by  his  Excellency 
Don  Jono  de  Almeida  de  Mello  de  Castro,  whose  attestation  is  dated  the 
27th  January,  1803. 

"In  testimony  whereof,  I  have  hereunto  set  my  hand  and  affixed 
my  seal  of  office,  in  Lisbon,  this  i6th  day  of  April,  one  thousand  eight 
hundred  and  three. 

"William  Jarvis." 

Marshall,  C.  J.:  "To  prove  that  the  Aurora  and  her  cargo  were 
sequestered  at  Para,  in  conformity  with  the  laws  of  Portugal,  two 
edicts  and  the  judgment  of  sequestration  have  been  produced  by  the 
defendants  in  the  Circuit  Court.  These  documents  were  objected  to 
on  the  principle  that  they  were  not  properly  authenticated,  but  the 
objection  was  overruled,  and  the  judges  permitted  them  to  go  to  the 
jury.     The  edicts  of  thei  crown  are  certified  by  the  American  consul  at 

in  the  same  cause,  equivalent  to  a  record;  office,   and    that    which    he   is    not   specially 

but   in   another   court   or    in    another   cause  authorized    by    his    office     to     do.  .  .  .  An 

in  the  same  court  the  copy  must  be  proved."  exemplification    is    under    the    seal    of    the 

Holroyd,    J.,    in    Applcton    v.    Brayhrook,  Court,   which   shows  it  to  be  the  act  of  the 

6    M.    Q    S.    37    (1816):      "The    distinction  Court,   and    it   is   equivalent    when    the   act 

is  plain   between  that  which  proceeds  from  is  done  by  an   officer   who  has  a   duty  cast 

the  officer  in  the  course  of  his  duty  in  the  on    him    for   the   express   purpose." 


320  HEARSAY  rule:   (b)  exceptions.  No.  340. 

Lisbon  to  be  copies  from  the  original  law  of  the  realm,  and  this  cer- 
tificate is  granted  under  his  official  seal.  ...  In  this  case  the  edicts 
produced  are  not  verified  by  an  oath.  The  consul  has  not  sworn; 
he  has  only  certified  that  they  are  truly  copied  from  the  original. 
To  give  to  this  certificate  the  force  of  testimony  it  will  be  neces- 
sary to  shew  that  this  is  one  of  those  consular  functions  to  which, 
to  use  its  own  language,  the  laws  of  this  country  attach  full  faith 
and  credit.  Consuls,  it  is  said,  are  officers  known  to  the  law  of  nations, 
and  are  entrusted  with  high  powers.  This  is  very  true,  but  they  do 
not  appear  to  be  entrusted  with  the  power  of  authenticating  the  laws 
of  foreign  nations.  They  are  not  the  keepers  of  those  laws.  They 
can  grant  no  official  copies  of  them.  There  appears  no  reason  for 
assigning  to  their  certificates  respecting  a  foreign  law  any  higher  or 
different  degree  of  credit,  than  would  be  assigned  to  their  certificates 
of  any  other  fact.  .  .  The  paper  offered  to  the  court  is  certified  to  be 
a  copy  compared  with  the  original.  It  is  impossible  to  suppose  that  this 
copy  might  not  have  been  authenticated  by  the  oath  of  the  consul  as  well 
as  by  his  certificate.  It  is  asked  in  what  manner  this  oath  should 
itself  have  been  authenticated,  and  it  is  supposed  that  the  consular 
seal  must  ultimately  have  been  resorted  to  for  this  purpose.  But 
no  such  necessity  exists.  Commissions  are  always  granted  for  taking 
testimony  abroad,  and  the  commissioners  have  authority  to  admin- 
ister oaths  and  to  certify  the  depositions  by  them  taken.  The  edicts 
of  Portugal,  then,  not  having  been  proved,  ought  not  to  have  been 
laid  before  the  jury. 

"The  paper  offered  as  a  true  copy  from  the  original  proceedings 
against  the  Aurora,  is  certified  under  the  seal  of  his  arms  by  D.  Jono 
de  Almeida  de  Mello  de  Castro,  who  states  himself  to  be  the  secretary 
of  state  for  foreign  affairs,  and  the  consul  certifies  the  English  copy 
which  accompanies  it  to  be  a  true  translation  of  the  Portuguese  orig- 
inal. Foreign  judgments  are  authenticated  [either],  i,  by  an  exemplifi- 
cation under  the  Great  Seal,  [or]  2,  by  a  copy  proved  to  be  a  true  copy, 
[or]  3,  by  the  certificate  of  an  officer  authorized  by  law,  which  certificate 
must  itself  be  properly  authenticated.  These  are  the  usual,  and  appear 
to  be  the  most  proper,  if  not  the  only,  modes  of  verifying  foreign  judg- 
ments. .  .  .  If  it  be  true  that  the  decrees  of  the  colonies  are  transmitted 
to  the  seat  of  government  and  registered  in  the  department  of  State,  a 
certificate  of  that  fact  under  the  Great  Seal,  with  a  copy  of  the  decree 
authenticated  in  the  same  manner,  would  be  sufficient  evidence  of  the 
verity  of  what  was  so  certified,  but  the  certificate  offered  to  the  Court  is 
under  the  private  seal  of  the  person  giving  it,  which  cannot  be  known 
to  this  Court,  and  of  consequence  can  authenticate  nothing.  The  paper, 
therefore,  purporting  to  be  a  sequestration  of  the  Aurora  and  her  cargo 
in  Para  ought  not  to  have  been  laid  before  the  jury."^^ 

11 — Compare  the  authorities  cited  in  W.,  §   1681. 


No.  342.  8c.     OFFICIAL  (certified)  copies.  321 

Statutes:  California,  C.  C  P.  1872,  §  1905:  "A  judicial  record  of 
this  State  or  of  the  United  States,  may  be  proved  by  the  produc- 
tion of  the  original,  or  by  a  copy  thereof,  certified  by  the  clerk 
***-^  or  other  person  having  the  legal  custody  thereof.  That  of  a 
sister  State  may  be  approved  by  the  attestation  of  the  clerk  and  the 
seal  of  the  court  annexed,  if  there  be  a  clerk  and  seal,  together  with 
a  certificate  of  the  chief  judge  or  presiding  magistrate  that  the  attes- 
tation is  in  due  form."  lb.,  §1906:  "A  judicial  record  of  a  foreign 
country  may  be  proved  by  the  attestation  of  the  clerk,  with  the  seal  of 
the  court  annexed,  if  there  be  a  clerk  and  a  seal,  or  of  the  legal  keeper 
of  the  record,  with  the  seal  of  his  office  annexed,  if  there  be  a  seal, 
together  with  a  certificate  of  the  chief  judge  or  presiding  magistrate 
that  the  person  m.aking  the  attestation  is  the  clerk  of  the  court  or  the 
legal  keeper  of  the  record,  and  in  either  case,  that  the  signature  of  such 
person  is  genuine,  and  that  the  attestation  is  in  due  form.  The  sig- 
nature of  the  chief  iudge  or  presiding  magistrate  must  be  authenti- 
cated by  the  certificate  of  the  minister  or  ambassador,  or  a  consul, 
vice-consul,  or  consular  agent  of  the  United  States  in  such  foreign 
country." 

Illinois,  Rev.  St.  1874,  c.  51,  §13:  "The  papers,  entries,  and  rec- 
ords of  courts  may  be  proved  by  a  copy  thereof  certified  under  the 
hand  of  the  clerk  of  the  court  having  the  custody  thereof,  and  the 
seal  of  the  court,  or  by  the  judge  of  the  court  if  there  be  no  clerk." 

United  States,  Constitution  1789,  Art.  IV,  §  i :  "Full  faith  and 
credit  shall  be  given  in  each  State  to  the  public  acts,  records,  and 
judicial  proceedings  of  every  other  State.  And  the  Congress  may  by 
general  laws  prescribe  the  manner  in  which  such  acts,  records,  and 
proceedings  shall  be  proved,  and  the  effect  thereof."  Rev.  St.  1878, 
§905  (St.  1790;  May  26):  "The  records  and  judicial  proceedings 
of  the  Courts  of  any  State  or  Territory,  or  of  any  such  country 
[subject  to  the  jurisdiction  of  the  U.  S.],  shall  be  proved  or  admit- 
ted in  any  other  Court  within  the  United  States,  by  the  attestation  of 
the  clerk,  and  the  seal  of  the  Court  annexed,  if  there  be  a  seal,  to- 
gether with  a  certificate  of  the  judge,  chief  justice,  or  presiding  magis- 
trate, that  the  said  attestation  is  in  due  form."^ 


Chief  Baron  Gilbert,  Evidence,  11    (ante  1726)  :     "My  Lord  Chief 
Justice  Parker  allowed  the  printed  statute  to  be  evidence,  in  the  case 
of  the   College  of  Physicians  and  Dr.   West,  of  the  truth  of  a 
**  private   act   of   Parliament   touching  the  institution  of  the   Col- 

lege of  Physicians,   because  the  printed   statute-book  is  printed  by  the 

I — Compare  the  authorities  cited  in  W.,  copy  of  a  domestic  judgment,  compare  the 

§    1681.  following:      Illitiois:   1895,   Garden    City   S. 

In    particular,    as    illustrating    differences  Co.    v.    Miller,    157   id.    225,    41    N.    E.    753 

of    local    State    practice    in    regard    to    re-  (Rev.     St.    c.     S'.    §     I3.    making    judicial 

quiring    the    seal   of    Court    for    a    certified  records     provable    by     the    clerk's    certified 


322  HEARSAY  rule:  (b)  exceptions.  No.  342. 

Queen's  authority,  and  therefore,  though  it  be  not  so  good  evidence 
as  an  exemplification  under  seal,  yet  it  must  be  supposed  as  good  an 
evidence  of  the  truth  of  a  copy  as  a  copy  compared  with  the  rolls  and 
sworn  to  by  the  testimony  of  any  witness,  which  is  allowed  daily  as 
a  good  proof  of  the  copy  of  a  record;  for  a  copy  printed  by  the  public 
authority  derives  more  credit  from  that  authority  than  it  would  from 
the  testimony  of  any  living  witness  that  had  compared  it."^ 

Statutes:  California,  C.  C.  P.  1872,  §1900:  "Books  printed 
under  the  authority  of  a  sister  State  or  foreign  country,  and  purport- 
ing to  contain  the  statutes,  code,  or  other  written  law  of  such 
^*^  State  or  country,  or  proved  to  be  commonly  admitted  in  the 
tribunals  of  such  State  or  country  as  evidence  of  the  written  law 
thereof,"  are  receivable.  lb.,  §1963:  There  is  a  presumption  "that 
a  printed  and  published  book  purporting  to  be  printed  or  published  by 
public  authority  was  so  printed  or  published." 

Nebraska,  Comp.  St.  1899,  §  5970 :  "Printed  copies  in  volumes  of 
statutes,  code,  or  other  written  law,  enacted  by  any  other  Territory,  or 
State,  or  foreign  government,  purporting  or  proved  to  have  been  pub- 
lished by  the  authority  thereof,  or  proved  to  be  commonly  admitted 
as  evidence  of  the  existing  law"  in  the  courts  thereof,  are  admissible.* 


9.      SCIENTIFIC  BOOKS. 

SPENCER  COWPER'S  TRIAL    (1699). 

I J  How.  St.  Tr.  1163. 

Murder;  the  deceased's  body  was  found  in  the  river,  and  the  de- 
fense maintained  that  she  had  drowned  herself.  A  medical  expert 
was  testifying  to  the  symptoms  of  drowning  as  indicated  by 
^**  the  condition  of  the  lungs.  Dr.  Crell:  "My  lord,  I  have  little 
to  say  in  this  affair,  the  physicians  that  have  been  examined  already 
having  made  it  out,  that  persons  who  are  drowned  may  have  but  lit- 
tle water  in  their  bodies;  but  I  have  taken  what  pains  I  could,  upon 
so  short  warning,  and  I  will  tell  you  the  opinion  of  several  eminent 
authors.  My  own  opinion  is,  that  a  very  small  quantity  of  water, 
not   exceeding   three  ounces,   is   sufficient  to  drown   any  body;  and   I 

copy  under  Court  seal,  includes  records  Massachusetts  it  is  sufficient  if  the  copy 
out  of  the  State,  because  such  a  copy  was  is  attested  by  the  clerk;  this  rule  of  evi- 
already  admissible  at  common  law  for  dence  is  founded  on  immemorial  usage"), 
records  within  the  State;  the  act  of  1872,  2—Marston,  J.,  in  Wilt  v.  Cutler,  38 
Rev.  St.  c.  SI,  §  13,  simply  repeats  that  Mich.  196  (1878):  "The  distinct  author- 
rule  for  domestic  records,  and  extends  it  ity  for  printing  and  publishing  the  laws 
to  foreign  records);  Massachusetts:  i860,  need  not  appear  in  any  case  where  they 
Chamberlin  v.  Ball,  15  Gray  352  (fi>r  a  purport  to  be  published  under  the  author- 
record  of  a  court  in  the  State,  "it  is  not  ity  of  the  government." 
necessary  that  it  should  be  an  exemplified  3 — Compare  the  authorities  cited  in  W., 
copy  under  the  seal  of  the  Court;  ...  in  §   1684. 


No.345.  9.      SCIENTIFIC  BOOKS.  323 

believe  that  the  reason  of  the  suffocation,  or  of  any  person's  being 
stifled  under  water,  is  from  the  intercepting  of  the  air,  that  the  person 
cannot  breathe,  without  which  he  cannot  live.  Now,  my  lord,  I  will 
give  you  the  opinion  of  several  ancient  authors."  Baron  Hatsell  : 
"Pray,  doctor,  tell  us  your  own  observations."  Dr.  Crell:  "My  lord, 
it  must  be  reading,  as  well  as  a  man's  own  experience,  that  will  make 
any  one  a  physician,  for  without  the  reading  of  books  of  that  art, 
the  art  itself  cannot  be  attained  to.  Besides,  my  lord,  I  conceive  that 
in  such  a  difficult  case  as  this  we  ought  to  have  a  great  deference 
for  the  reports  and  opinions  of  learned  men.  Neither  do  I  see  why 
I  should  not  quote  from  the  fathers  of  my  profession  in  this  case  as 
well  as  you  gentlemen  of  the  long  robe  quote  Coke  upon  Littleton  in 
others."* 


ASHWORTH   V.  KITTREDGE    (1853). 

13  Cush.  ip4. 

Shaw,  C.  J. :  "In  an  action  against  a  surgeon,  for  neglect,  and 
want  of  competent  skill,  in  the  treatment  of  the  plaintiff,  by  means 
of  which  the  plaintiff'  lost  his  arm,  the  plaintiff  put  in  his 
***"  evidence,  to  show  what  was  his  own  condition,  and  the  treat- 
ment by  the  defendant,  and  both  parties  offered  evidence  of  the  opin- 
ions of  physicians  and  surgeons  as  experts.  .  .  .  The  Court  are  of 
opinion,  that  it  was  not  competent  for  the  counsel  for  the  plaintiff, 
against  the  objection  of  the  other  side,  to  read  medical  books  to  the 
jury.  It  was  formerly  practiced  rather  by  general  indulgence  and 
tacit  consent  of  the  parties,  than  in  pursuance  of  any  rule  of  law ;  but  it 
has  been  frequently  decided  that  it  is  not  admissible,  and  we  now  con- 
sider the  law  to  this  effect  well  settled,  both  upon  principle  and  au- 
thority. Where  books  are  thus  offered,  they  are  in  effect  used  as 
evidence,  and  the  substantial  objection  is,  that  they  are  statements 
wanting  the  sanction  of  an  oath ;  and  the  statement  thus  proposed,  is 
made  by  one  not  present,  and  not  liable  to  cross-examination.  If 
the  same  author  were  cross-examined,  and  called  to  state  grounds  of 
his  opinion,  he  might  himself  alter  or  modify  it,  and  it  would  be  tested 
by  a  comparison  of  the  opinions  of  others.  Medical  authors,  like 
writers  in  other  departments  of  science,  have  their  various  and  con- 
flicting theories,  and  often  sustain  and  defend  them  with  ingenuity. 
But  as  the  whole  range  of  medical   literature  is  not  open  to  persons 

4 — Theory    of    Evidence,    c.    II,    pi.    104  on    particular    subjects,    but    not    to    prove 

(1739):    "The  almanack   is  a  sufficient  evi-  facts.  ...  In     this     case     the     defendant's 

dence  to   prove   a  day    Sunday."  counsel    proposed    to    read    certain    specific 

Pollock,    C.    B.,   in   Darhy   v.    Ouseley,    i  [church]    canons,   not  as  matters  of  specu- 

H.    &    N.    I,   8    (1856):    "Standard   authors  lative  opinion,  .  .  .  but  as  matters  of  fact." 

may  be  referred  to   for  such   a  purpose   [to  Compare    the   authorities   cited    in    W.,    §§ 

show   the   literary   significance   of  parodies]  1698,    1699;    and    No.    636,   post, 
or  as  showing  the  opinions  of  eminent  men 


324  HEARSAY  rule:  (e)  exceptions.       No.  345. 

of  common  experience,  a  passage  may  be  found  in  one  book  favorable 
to  a  particular  opinion,  when  perhaps  the  same  opinion  may  have 
been  vigorously  contested,  and  perhaps  triumphantly  overthrown,  by 
other  medical  authors,  but  authors  whose  works  would  not  be  likely 
to  be  known  to  counsel  or  client,  or  to  court  or  jury, 

"Besides;  medical  science  has  its  own  nomenclature,  its  technical 
terms  and  words  of  art,  and  also  common  words  used  in  a  peculiar 
manner,  distinct  from  their  received  meaning,  in  the  general  use 
of  the  language.  From  these  and  other  causes,  a  person  not  versed 
in  medical  literature,  though  having  a  good  knowledge  of  the  general 
use  of  the  English  language,  would  be  in  danger,  without  an  inter- 
preter, of  misapprehending  the  true  meaning  of  the  author.  Whereas, 
a  medical  witness  would  not  only  give  the  fact  of  his  opinion,  and  the 
grounds  on  which  it  is  formed,  with  the  sanction  of  his  oath,  but 
would  also  state  and  explain  it  in  language  intelligible  to  men  of  com- 
tnon  experience.  If  it  be  said,  that  no  books  should  be  read,  except 
works  of  good  and  established  authority,  the  difficulty  at  once  arises 
as  to  the  question,  what  constitutes  'good  authority;'  more  especially 
whether  it  is  a  question  of  competency  to  be  decided  by  the  court, 
whether  any  particular  book  shall  be  received  or  rejected;  or  a  ques- 
tion of  weight  of  testimony,  so  that  any  book  may  be  read,  leaving 
its  weight,  force  and  effect  to  the  jury.  Either  of  the  alternatives 
would  be  attended  with  obvious,  if  not  insuperable  objections."^ 


PINNEY  V.  CAHILL    (1882). 

48  Mich.  587,  12  N.  IV.  862. 

Graves,  C.  J. :   "The  defendant  hired  the  plaintiff's   horse  to   drive 

from  Milford  to  Holley  and  back  and  the  animal  became  sick  and  died. 

The   plaintiff   claimed   that   this    was    caused   by   defendant's   ill- 

"*"       usage   and   neglect   and   he   sued   for   damages.     The  jury   found 

judgment  against  him  and  he  brought  this  writ  of  error.  .  .  .  The  plain- 

S — Lacomhe,  J.,  in  Western  Assurance  tended  for,  that  valuable  information  would 
Co.  V.  Mohlman  Co.,  28  C.  C.  A.  157,  83  be  available  for  the  use  of  a  court  of 
Fed.  811  (1897),  allowing  a  civil  engineer,  justice  so  long  as  the  men  who  made  the 
called  as  an  expert  in  construction,  to  read  tests  and  prepared  the  tabulations  were 
excerpts  from  scientific  books  when  giving  living  and  producible,  but  after  their  death 
his  testimony:  "The  rule  is  not  of  univer-  or  disappearance  the  information  they  had 
sal  application.  It  would  be  a  reproach  gathered  would  be  lost  to  the  court,  al- 
to the  administration  of  the  law  if  it  though  available  for  every  one  else  in  the 
were  so.  Records  of  observations  are  un-  community,  and  relied  upon  by  engineers 
doubtedly  secondary  evidence;  but,  if  all  and  builders  whenever  a  new  structure  ig 
such  records  were  excluded  from  the  in  process  of  erection.  Upon  the  precise 
sources  of  knowledge  available  to  a  court  point  here  presented  the  diligence  of  coun- 
of  justice,  it  would  frequently  find  itself  sel  has  not  succeeded  in  discovering  a  sin- 
unable  to  obtain  information  which  was  gle  authority.  We  feel,  therefore,  no  hesi- 
open  to  every  individual  in  the  community.  tancy  in  so  modifying  the  general  rule 
It  has  been  held  repeatedly  that  standard  as  to  hold  that,  where  the  scientific  work 
life  and  annuity  tables,  showing  at  any  containing  them  is  concededly  recognized 
age  the  probable  duration  of  life,  are  com-  as  a  standard  authority  by  the  profession, 
patent    evidence.   .  .  .  Under    the    rule   con-  statistics     of    mechanical     experiments     and 


No.  347.  9.      SCIENTIFIC  BOOKS.  325 

tiff  produced  a  witness  who  swore  that  he  was  a  veterinary  surgeon  of 
25  years'  standing,  and  his  opinion  as  an  expert  being  called  for  he 
swore  that  in  his  opinion  the  horse  died  from  being  overfed  when  too 
hot,  which  would  produce  colic.  On  cross-examination  he  said  that 
colic  was  caused  by  over  driving  and  feeding  when  the  animal  is  too 
warm ;  that  all  works  of  good  authority  spoke  of  it  and  that  the  'Modern 
Horse  Doctor,  by  Dr.  Dodd'  was  a  work  of  that  kind.  The  defendant 
then  offered  to  show  from  this  work  of  Dr.  Dodd,  where  the  author 
treats  of  colic,  the  passage  following:  'In  nine  cases  out  of  ten  colic 
is  the  result  of  impaired  digestive  organs;  the  food  runs  into  fermenta- 
tion and  evolves  carbonic  acid  gas.'  This  evidence  was  offered  to  dis- 
credit this  expert  in  connection  with  his  cross-examination.  The  plain- 
tiff objected  to  its  introduction  but  the  court  admitted  it.  The  rule  is 
acknowledged  in  this  state  that  medical  books  are  not  admissible  as  a 
substantive  medium  of  proof  of  the  facts  they  set  forth.  But  the  matter 
in  question  was  not  adduced  with  any  such  view.  The  witness  as- 
sumed to  be  a  person  versed  in  veterinary  science;  to  be  familiar  with 
the  best  books  which  treat  of  it  and  among  others  with  the  work  of 
Dodd.  He  professed  himself  qualified  to  give  an  opinion  to  the  jury 
from  the  witness  stand  on  the  ailment  of  the  plaintiff's  horse  and  its 
cause,  and  the  drift  of  his  opinion  was  to  connect  the  defendant  with 
that  ailment.  He  borrowed  credit  for  the  accuracy  of  his  state- 
ment on  referring  his  learning  to  the  books  before  mentioned  and  by 
implying  that  he  echoed  the  standard  authorities  like  Dodd.  Under  the 
circumstances  it  was  not  improper  to  resort  to  the  book,  not  to  prove  the 
facts  it  contained,  but  to  disprove  the  statement  of  the  witness  and 
enable  the  jury  to  see  that  the  book  did  not  contain  what  he  had  ascribed 
to  it."« 


10.       COMMERCIAL  REPORTS,  ETC. 

SISSON  V.  RAILROAD  CO.   (1866). 

14  Mich.  48p,  4p6. 

Action  of  assumpsit,  brought  in  the  court  below  against  the  defend- 
ants as  common  carriers,  upon  a  special  contract  for  the  transportation 
of  a  lot  of  beef  cattle  from  Toledo  to  Buffalo,  on  their  way  to  the 
****  market  at  Albany  or  New  York.  .  .  .  There  was  evidence  also 
given,  tending  to  show  that  the  cattle  were  detained  a  long  time  on  the 
way,  by  the  fault  of  the  defendants,  and  that  the  plaintiff  suff'ered  damage 
in  consequence  thereof,  both  by  the  depreciation  of  the  quality  of  the 

tauulations    of   the    results   thereof   may   be  statistics    and    tabulations    are    concerned." 

read    in    evidence    by   an    expert   witness    in  Compare   the   authorities   cited    in    W'.,    §§ 

support    of   his    professional    opinion,    when  1693,    1696. 

such   statistics  and  tabulations  are  generally  6 — Compare   the   authorities  cited   in   W., 

relied    upon    by    experts    in    the    particular  §    1700. 

field   of  the  mechanic   arts  with   which  such 


326  HEARSAY  rule:  (b)  exceptions.  No.  347. 

cattle,  and  the  fall  of  the  market  before  they  reached  Albany.  .  .  . 
The  evidence  consisted  of  the  knowledge  the  witnesses  had  of  the  state 
of  the  market,  as  a  matter  of  general  notoriety,  derived  from  news- 
papers (in  which  the  state  of  the  market  is  published  daily),  and  tele- 
graph reports,  and  from  the  statements  of  those  engaged  in  the  business. 
CooLEY,  J. :  "Evidence  of  the  state  of  the  markets  as  derived  from 
the  market  reports  in  the  newspapers  [should  not  have  been  excluded]. 
.  .  .  The  principle  which  supports  these  cases  will  allow  the  market 
reports  of  such  newspapers  as  the  commercial  world  rely  upon  to  be 
given  in  evidence.  As  a  matter  of  fact  such  reports,  which  are  based 
upon  a  general  survey  of  the  whole  market  and  are  constantly  received 
and  acted  upon  by  dealers,  are  far  more  satisfactory  and  reliable  than 
individual  entries  or  individual  sales  or  inquiries ;  and  Courts  would 
justly  be  the  subject  of  ridicule  if  they  should  deliberately  shut  their 
eyes  to  the  sources  of  information  which  the  rest  of  the  world  relies 
upon,  and  demand  evidence  of  a  less  certain  and  satisfactory  char- 
acter.'"' 


II.      STATEMENTS  OF  A  BODILY  OR  MENTAL  CONDI- 
TION. 

a.     Pain  and  Suffering. 

BACON  v.  CHARLTON    (1851). 

7  Cush.  581,  586. 

Action  on  the  case  to  recover  damages  for  an  injury  sustained  by  the 
plaintiff,  in  being  thrown  from  his  carriage,  while  traveling  through 
the  town  of  Charlton,  in  consequence  of  an  obstruction  in  the 
**  **  highway.  .  .  .  The  presiding  judge  ruled  that  groans  or  ex- 
clamations of  pain,  made  by  the  plaintiff,  at  any  time,  were  admissible 
in  evidence,  although  they  referred  either  by  word  or  gesture  to  the 
locality  of  the  pain ;  as  if  a  man  should  put  his  hand  upon  his  side 
and  groan,  or  should  say,  "Oh,  my  head !"  or  utter  similar  complaints, 
teing  an  expression  of  present  pain  or  agony;  but  that  any  statement  of 
his  condition  or  feelings,  made  in'  answer  to  a  question,  or  as  a  narra- 
tive, or  with  a  view  to  communicate  information,  was  not  admissible. 
And  a  witness  was  accordingly  allowed,  against  the  defendant's  objec- 
tion, to  testify  that  the  plaintiff  made  exclamations  of  pain  all  the  way 

7 — Smith,  J.,  in  Fairley  v.  Smith,  87  N.  this    information,    as    truthful    and    correct, 

C.     367,     371     (1882),     rejecting    a    cotton-  in  their  dealings  with  each  other;   nor  from 

quotation    in    a    Charlotte    newspaper     for  what   source    the    information    itself  comes. 

Boston    prices:    "The   evidence   received   in  ...   [It    was    thus    improper   to    admit    the 

the  present   case   has  none   of   those  essen-  evidence]    without    any    proof,    outside    the 

tial    safeguards   to   ensure   the  accuracy   of  paper,    of    its    trustworthiness    and    recogni- 

the    published    information    as    to   the   state  tion    as   such    by   business   men    dealing   in 

of    a    distant    market,    to    warrant    its    un-  cotton." 

qualified   submission   to   the   jury.      It   does  Compare   the   authorities   cited  in   W.,  9 

not   appear    that   business   men    acted   upon  1702. 


I 


No.  349.  II.      BODILY  OR  MENTAL  CONDITION.  327 

home  from  the  place  of  the  accident;  that  he  made  complaints  of  pain 
for  three  or  four  days  after  the  accident,  and  stated  the  locahty  of  the 
pains;  and  that  he  sometimes  put  his  hand  upon  his  hip  and  sometimes 
upon  his  left  side. 

BiGELOW,  J. :  "Where  the  bodily  or  mental  feeling  of  a  party  are  to 
be  proved,  the  usual  and  natural  expressions  of  such  feelings,  made  at 
the  time,  are  considered  competent  and  original  evidence  in  his  favor. 
And  the  rule  is  founded  upon  the  consideration  that  such  expressions 
are  the  natural  and  necessary  language  of  emotion,  of  the  existence  of 
which,  from  the  very  nature  of  the  case,  there  can  be  no  other  evi- 
dence. .  .  .  Such  evidence,  however,  is  not  to  be  extended  beyond  the 
necessity  on  which  the  rule  is  founded.  Anything  in  the  nature  of  narra- 
tion or  statement  is  to  be  carefully  excluded,  and  the  testimony  is  to  be 
confined  strictly  to  such  complaints,  exclamations,  and  expressions  as 
usually  and  naturally  accompany  and  furnish  evidence  of  a  present 
existing  pain  or  malady.  .  .  .  These  remarks  as  to  the  limitation  of  the 
rule  are  not  intended  to  apply  to  the  statements  made  by  a  patient  to  a 
medical  man,  to  which  a  different  rule  may  be  applicable."* 


BARBER  V.  MERRIAM    (1865). 

II  All.  ^22. 

Action  of  tort  for  personal  injury.  At  the  trial  there  was  evidence 
that   the    female   plaintiff,    for   the  first  two   weeks   of   her  illness,   was 

attended  by  Dr.  Holden,  and  afterwards  by  Dr.  Weld.  .  .  .  Dr. 

Guild,  who  succeeded  Dr.  Weld  in  attendance  on  the  female  plain- 
tiff, was  called  as  a  witness,  and  was  allowed  to  repeat  to  the  jury  the 
statements  of  the  plaintiff  herself,  made  since  the  suit  was  brought, 
for  the  purpose  of  receiving  medical  advice,  as  to  the  character  and  seat 
of  her  injuries  and  sensations,  against  the  objection  of  the  defendants. 

8 — Aveson     v.     Kinnaird,     6     East     195  her    own    advantage    and   that   of    her    hus- 

(1805);    evidence    was    offered    of    declara-  band,     and     therefore     falling    within     the 

tions    on   a   sickbed   by   the   plaintiff's   wife  principle    of   the   case   in    Skinner   which    I 

that    she    was    not    well    on    the    previous  have  alluded  to." 

Tuesday,    when    she    went    to    be    insured;  Swayne,  J.,  in  Insurance  Co.  v.  Mosley, 

Ellenborough,    L.    C.    J.:      "A    witness    has  8  Wall,  397    (1869):   "Wherever  the  bodily 

been   received   to  relate   that   which   has  al-  or    mental    feelings    of    an    individual    are 

ways    been    received    from    patients    to    ex-  material    to    be    proved,    the    usual    expres- 

plain — her    own    account    of    the    cause    of  sions     of    such     feelings    are    original     and 

her   being   in    bed   at   an   unseasonable   hour  coinjietcnt  evidence.     These  expressions  are 

with    the    appearance    of    being    ill.     .     .     .  the    natural    reflexes    of    what    it    might    be 

What  were  the  complaints,  what  the  symp-  impossible     to    show    by     other    testimony, 

toms,  what  the  conduct  of  the  parties  them-  ...  As  independent  explanatory  or  corrob- 

selves  at  the  time,  are  always  received  upon  orative   evidence,    it    is   often    indispensable 

such    inquiries,    and    must    be    resorted    to  to    the    due   administration    of   justice, 

from    the    very    nature    of    the    thing.   .  .   .  .Such    evidence    must    not    be    extended    be- 

The    declaration    was    upon    the    subject    of  yond    the  necessity   upon    which   the   rule    is 

her    own    health    at    the    time,    which    is    a  founded.       It    must    relate    to    the    present, 

fact    of   which    her    own    declaration    is    evi-  not    to    the    past.      .Anything    in    the   nature 

dcnce;    and    that    too    made    unawares    be-  of  narration    must   be   excluded." 
fore    she    could    contrive    any    answer    for 


328  HEARSAY  rule:   (b)  exceptions.  No.  349. 

G.  Putnam,  Jr.,  for  the  defendant :  ".  .  .  The  statements  of  the  female 
plaintiff  to  Dr.  Guild  ought  not  to  have  been  admitted.  They  would 
clearly  have  been  incompetent,  if  made  to  anybody  except  a  medical 
attendant.  Bacon  v.  Charlton  (7  Cush.  581,  586).  It  has  frequently 
been  stated  by  text- writers  and  judges  that  such  statements,  if  made 
by  a  patient  to  a  physician,  may  be  given  in  evidence;  but  no  adjudi- 
cation of  that  point  has  been  found." 

BiGELOw,  C.  J.:  "In  Bacon  v.  Charlton  (7  Cush.  581,  586)  it  was 
held  that  a  party  to  an  action  might  give  in  evidence  his  own  complaints, 
exclamations,  and  expressions,  such  as  usually  and  naturally  accom- 
pany and  indicate  bodily  pain  or  injury;  but  that  all  statements  of  facts 
and  narrations  of  prior  occurrences  by  him,  although  connected  with 
and  relating  to  his  malady  or  injury,  are  incompetent  and  ought  to  be 
excluded.  It  was  intimated  in  that  case  that  a  different  rule  might  be 
applicable  to  statements  made  by  a  patient  to  a  medical  man ;  and,  on 
consideration,  we  entertain  no  doubt  that  there  is  a  well-founded  dis- 
tinction between  these  two  kinds  or  species  of  evidence.  ...  Its  ad- 
missibility is  an  exception  to  the  general  rule  of  evidence,  which 
has  its  origin  in  the  necessity  of  the  case.  .  .  .  To  the  argument  against 
their  competency  founded  on  the  danger  of  deception  and  fraud,  the 
answer  is  that  such  representations  are  competent  only  when  made  to  a 
person  of  science  and  medical  knowledge,  who  has  the  means  and  oppor- 
tunity of  observing  and  ascertaining  whether  the  statements  and  declara- 
tions correspond  with  the  condition  and  appearance  of  the  persons 
making  them,  and  the  present  existing  symptoms  which  the  eye  of  ex- 
perience and  skill  may  discover.  Nor  is  it  to  be  forgotten  that  statements 
made  to  a  physician  for  the  purpose  of  medical  advice  and  treatment 
are  less  open  to  suspicion  than  the  ordinary  declarations  of  a  party. 
They  are  made  with  a  view  to  be  acted  on  in  a  matter  of  grave  per- 
sonal concernment,  in  relation  to  which  the  party  has  a  strcfng  and 
direct  interest  to  adhere  to  the  truth.  ...  It  is  suggested,  in  behalf  of 
the  defendant,  that  the  statements  in  the  present  case  were  made  by  the 
plaintiff  after  the  commencement  of  this  action.  But  we  do  not  think 
that  for  this  reason  only  they  ought  to  have  been  rejected.  It  was  a 
circumstance  which  may  have  detracted  from  the  weight  of  the  evidence 
of  the  opinion  of  the  physician,  so  far  as  it  was  founded  on  these  state- 
ments. But  as  the  statements  were  made  to  a  medical  man  and  for  the 
purpose  of  receiving  medical  advice,  they  were  competent  and  admis- 
sible."9 

9 — Endicott,  J.,  in  Roosa  v.  Loan  Co.,  ness]  these  declarations  are  admitted  from 
132  Mass.  439  (1882):  "While  a  witness  necessity  because  in  this  way  only  can  the 
not  an  expert  can  testify  only  to  such  bodily  condition  of  the  party  ...  be  as- 
exclamations  and  complaints  as  indicate  certained.  But  the  necessity  does  not  ex- 
present  existing  pain  and  suffering,  a  phy-  tend  to  declarations  by  the  party  as  to  the 
sician  may  testify  to  a  statement  or  nar-  cause  of  the  injury  .  .  .  which  may  be 
rative  given  by  his  patient  in  relation  to  proved  by  other  evidence." 
his  condition,  symptoms,  sensations,  and  Compare  the  authorities  cited  in  W.,  § 
feelings,  both  past  and  present.  In  both  1722. 
these    cases    [physician    and    ordinary    wit- 


No.  350.  II.      BODILY  OR  MENTAL  CONDITION.  329 

ROCHE  V.  RAILROAD  CO.    (1887). 
105  N.  Y.  2p4,  II  N.  E.  6^0. 

Peckham,  J.:  ''The  only  question  in  this  case  arises  upon  tha  ad- 
mission of  the  testimony  of  a  third  party  that  the  plaintiff,  some  days 
after  the  happening  of  the  accident  which  caused  her  injury, 
•*'*"  complained  that  she  was  suffering  pain  in  her  injured  arm.  The 
witness  did  not  testify  that  on  these  occasions  the  plaintiff  screamed 
or  groaned,  or  gave  other  manifestations  of  a  seemingly  involuntary 
nature  and  indicative  of  bodily  suffering,  but  he  proved  simple  state- 
ments or  declarations  made  by  plaintiff',  that  she  was  at  the  time  of 
making  them  suffering  with  pain  in  her  arm.  The  plaintiff  was  her- 
self sworn  and  proved  the  injury  and  the  pain.  The  condition  of  the 
arm  the  night  of  the  accident  was  also  proved ;  that  it  was  very  much 
swollen  and  black  all  around  it,  and  subsequently  red  and  inflamed, 
and  continued  swollen  and  inflamed  more  or  less  for  a  long  time.  The 
defendant  challenges  the  evidence  of  complaints  of  pain  thus  made,  on 
the  ground  that  it  was  incompetent,  and  the  argument  made  was  that 
the  evidence  as  to  the  injury  and  its  extent  could  not  be  thus  corrobo- 
rated by  mere  hearsay. 

"Prior  to  the  time  when  parties  were  allowed  to  be  witnesses,  the  rule 
in  this  class  of  cases  permitted  evidence  of  this  nature.  Caldwell  v. 
Murphy,  11  N.  Y.  416;  Werely  v.  Persons,  28  N.  Y.  344.  These  cases 
show  that  the  evidence  was  not  confined  to  the  time  of  the  injury, 
or  to  mere  exclamations  of  pain.  The  admissibility  of  the  evidence  was 
put,  in  the  opinion  of  Judge  Denio,  in  11  N.  Y.,  supra,  upon  the  neces- 
sity of  the  case,  as  being  the  only  means  by  which  the  condition  of  the 
sufferer  as  to  enduring  pain  could,  in  many  instances,  be  proved.  .  .  . 
After  the  adoption  of  the  amendment  to  the  Code,  permitting  parties 
to  be  witnesses,  the  question  under  discussion  was  somewhat  mooted 
in  Reed  v.  Railroad,  45  N.  Y.  574,  by  Allen,  J.,  in  the  course  of  his 
opinion,  although  the  precise  point  was  not  before  the  court.  .  .  .  The 
case  of  Hagenlocher  v.  Brooklyn  R.  R.,  99  N.  Y.  136,  i  N.  E.  Rep.  536, 
decides  that,  even  since  the  Code,  evidence  of  exclamations  indicative 
of  pain  made  by  the  party  injured  is  admissible.  The  case  does  not 
confine  proof  of  these  exclamations  to  the  time  of  the  injury.  The 
question  was  asked  of  the  plaintiff's  mother:  'How  long  after  injury 
was  your  daughter  confined  in  the  bed  ?'  Answer.  She  was  for  about 
four  weeks.  Question.  What  expressions  did  she  make,  or  what  mani- 
festations, showing  that  she  suffered  pain  ?'  This  shows  there  was 
no  confinement  of  the  evidence  to  the  time  of  the  injury.  The  evi- 
dence given,  however,  was  of  screams  when  the  plaintiff's  foot  was 
touched,  and  of  her  exclamations  of  pain  when  even  the  sheet  was  per- 
mitted to  touch  the  foot.  The  evidence  was  permitted  on  the  ground 
that  it  was  of  a  nature  which  substantially  corroborated  the  plaintiff 
as  to  her  condition. 


330 


HEARSAY   rule:    (b)    EXCEPTIONS. 


No.  350. 


"Having  thus  admitted  evidence  of  this  kind  since  the  adoption  of 
the  Code  amendment  permitting  parties  to  be  witnesses,  the  question 
is  whether  there  is  such  a  clear  distinction  between  it  and  evidence  of 
simple  declarations  of  a  party  that  he  was  then  suffering  pain,  but 
giving  no  other  indications  thereof,  as  to  call  for  the  adoption  of  a 
different  rule.  It  seems  to  us  that  there  is.  Evidence  of  exclamations, 
groans,  and  screams  is  now  permitted,  more  upon  the  ground  that  it 
is  a  better  and  clearer  and  more  vigorous  description  of  the  then  exist- 
ing physical  condition  of  the  party  by  an  eye-witness  than  could  be 
given  in  any  other  way.  It  characterizes  and  explains  such  condition. 
Thus,  in  the  very  last  case  cited,  it  was  shown(  that  the  foot  was  very 
much  swollen,  and  so  sore  than  the  sheet  could  not  touch  it.  How  was 
the  condition  of  soreness  to  be  shown  better  than  by  the  statement  that, 
when  so  light  an  article  as  a  sheet  touched  the  foot,  the  patient 
screamed  with  pain?  It  was  an  involuntary  and  natural  exhibition 
and  proof  of  the  existence  of  intense  soreness  and  pain  therefrom. 
True,  it  might  be  simulated,  but  this  possibility  is  not  strong  enough 
to  outweigh  the  propriety  af  permitting  such  evidence  as  fair,  natural, 
and  original  corroborative  evidence  of  the  plaintiff  as  to  his  then  physi- 
cal condition.  Its  weight  and  propriety  are  not,  therefore,  now  sus- 
tained upon  the  old  idea  of  the  necessity  of  the  case. 

"But  evidence  of  simple  declarations  of  a  party,  made  some  time 
after  the  injury,  and  not  to  a  physician  for  the  purpose  of  being  attended 
to  professionally,  and  simply  making  the  statement  that  he  or  she  is 
then  suffering  pain,  is  evidence  of  a  totally  different  nature,  is  easily 
stated,  liable  to  gross  exaggeration,  and  of  a  most  dangerous  tendency, 
while  the  former  necessity  for  its  admission  has  wholly  ceased.  As  is 
said  by  Judge  Allen,  in  Reed  v.  Railroad,  supra,  the  necessity  for  giving 
such  declarations  in  evidence,  where  the  party  is  living  and  can  be 
sworn,  no  longer  existing,  and  that  being  the  reason  for  its  admission, 
the  reason  of  the  rule  ceasing,  the  rule  itself,  adopted  with  reluctance 
and  followed  cautiously,  should  also  cease.  .  .  .  For  these  reasons,  the 
evidence  of  Mr.  McElroy,  as  to  the  plaintiff's  declarations  of  existing 
pain,  when  they  were  walking  in  the  street  together,  long  after  the 
accident,  should  not  have  been  received."^" 


10 — Canty,  J.,  diss.,  in  Williams  v.  R. 
Co.,  68  Minn.  55,  70  N.  W.  860  (1897): 
"So  narrow  and  strict  a  rule  is  not  prac- 
ticable. The  expression  of  suffering  may 
be  one-half  groans  and  exclamations  and 
one-half  words  or  nine-tenths  of  the  for- 
mer and  one-tenth  of  the  latter,  or  vice 
versa.  How  can  the  law  say  how  much 
of  the  utterance  shall  consist  of  words, 
and  how  much  of  groans,  sighs,  and  ex- 
clamations, or  that  it  may  not  all  consist 
of  words?  Again,  how  can  the  law  say 
what    degree    of    anguish    the    words    shall 


be  uttered?  One  person  complains  cheer- 
fully, and  even  laughs  and  jokes,  when 
he  is  suffering  intense  agony,  while  an- 
other complains  most  dolefully  about  the 
slightest  afflictions.  For  these  reasons,  I 
cannot  agree  with  the  majority  or  with  the 
New  York  cases,  which  attempt  to  make 
a  distinction  between  words  describing 
present  existing  suffering  and  other  ex- 
clamations   indicating    such    suffering." 

Compare    the   authorities   cited   in    W.,    § 
1719. 


No.  351.  II.      BODILY  OR  MENTAL  CONDITION.  331 


lib.     Intent  and  Design. 

MUTUAL  LIFE  INSURANCE  CO.  v.  HILLMON    (1892). 
143  U.  S.  285,  12,  Sup.  pop. 

Action  on  a  life  insurance  policy.  John  W.  Hillmon,  the  insured, 
who  had  lived  in  Wichita,  was  alleged  to  have  been  accidentally  killed 
in  southern  Kansas,  at  Crooked  Creek,  in  a  deserted  region 
®^^  whither  he  had  gone  prospecting  for  a  ranch  site  in  company 
with  one  Brown.  The  defence  contended  that  John  W.  Hillmon  was 
not  dead ;  that  the  body  found  was  that  of  one  Walters,  and  that  Hill- 
mon had  insured  his  life  with  the  fraudulent  intention  of  pretending 
death  in  order  to  collect  the  insurance  money. 

Gray,  J. :  "This  [important]  question  is  of  the  admissibility  of  the 
letters  written  by  Walters  on  the  first  days  of  March,  1879,  which  were 
offered  in  evidence  by  the  defendants,  and  excluded  by  the  court.^^  In 
order  to  determine  the  competency  of  these  letters,  it  is  important  to 
consider  the  state  of  the  case  when  they  were  offered  to  be  read.  The 
matter  chiefly  contested  at  the  trial  was  the  death  of  John  W.  Hill- 
mon, the  insured ;  and  that  depended  upon  the  question  whether  the 
body  found  at  Crooked  Creek  on  the  night  of  March  18,  1879,  was 
his  body,  or  the  body  of  one  Walters.  Much  conflicting  evidence  has 
been  introduced  as  to  the  identity  of  the  body.  The  plaintiff  had  also 
introduced  evidence  that  Hillmon  and  one  Brown  left  Wichita  in  Kan- 
sas on  or  about  March  5,  1879,  and  travelled  together  through  southern 
Kansas  in  search  of  a  site  for  a  cattle  ranch,  and  that  on  the  night 
of  March  18,  while  they  were  in  camp  at  Crooked  Creek,  Hillmon  was 
accidentally  killed,  and  that  his  body  was  taken  thence  and  buried. 
The  defendants  had  introduced  evidence,  without  objection,  that  Wal- 
ters left  his  home  and  his  betrothed  in  Iowa  in  March,  1878,  and  was 
afterwards  in  Kansas  until  March,  1879;  that  during  that  time  he  cor- 
responded regularly  with  his  family  and  his  betrothed ;  that  the  last 
letters  received  from  his  were  one  received  by  his  betrothed  on  March 
3  and  postmarked  at  Wichita,  March  2,  and  one  received  by  his  sister 
about  March  4  or  5,  and  dated  at  Wichita  a  day  or  two  before;  and  that 
he  had  not  been  heard  from  since.  The  evidence  that  Walters  was  at 
Wichita  on  or  before  March  5,  and  had  not  been  heard  from  since,  to- 
gether with  the  evidence  to  identify  as  his  the  body  found  at  Crooked 
Creek  on   March    18,   tended  to   show   that  he   went  from   Wichita  to 

11 — One  of  these  letters  was  as  follows,  sheep-trader,  for  Colorado  or  parts  Un- 
as repeated  by  a  witness  from  memory:  known  to  me.  I  expect  to  see  the  country 
"Wichita,  Kansas,  March  4th  or  sth  or  now.  News  are  of  no  interest  to  you, 
3d  or  4th — I  don't  know — 1879.  Dear  Sis-  as  you  are  not  acquainted  here.  I  will 
ter  and  all:  I  now  in  my  usual  style  drop  close  with  compliments  to  all  inquiring 
you  a  few  lines  to  let  you  know  that  I  friends.  Love  to  all.  I  am  truly  your 
expect  to  leave  Wichita  on  or  about  March  brother,  Fred.  Adolph  Walters." 
the    5th,    with    a    certain    Mr.    Hillmon,    a 


332 


HEARSAY    rule:     (b)    EXCEPTIONS. 


No.  351. 


Crooked  Creek  between  those  dates,  livid. — ^c  that  just  before  March 
5  he  had  the  intention  of  leaving  Wichita  with  HiHmon  would  tend  to 
corroborate  the  evidence  already  admitted,  and  to  show  that  he  went 
from  Wichita  to  Crooked  Creek  with  Hillmon. 

"Letters  from  him  to  his  family  and  to  his  betrothed  were  the  natural, 
if  not  the  only  attainable  evidence  of  his  intention.  ...  A  man's  state 
of  mind  or  feeling  can  only  be  manifested  to  others  by  countenance, 
attitude,  or  gesture,  or  by  sounds  or  words,  spoken  or  written.  .  .  . 
The  existence  of  a  particular  intention  in  a  certain  person  at  a  certain 
time  being  a  material  fact  to  be  proved,  evidence  that  he  expressed  that 
intention  at  that  time  is  as  direct  evidence  of  the  fact  as  his  own  tes- 
timony that  he  then  had  that  intention  would  be.  After  his  death,  there 
can  hardly  be  any  other  way  of  proving  it ;  and  while  he  is  still  alive, 
his  own  memory  of  his  state  of  mind  at  a  former  time  is  no  more  likely 
to  be  clear  and  true  than  a  bystander's  recollection  of  what  he  then 
said,  and  is  less  trustworthy  than  letters  written  by  him  at  the  very 
time  and  under  circumstances  precluding  a  suspicion  of  misrepresenta- 
tion."i2 


lie.     Statements  by  a  Testator. 

DOE  dem.  SHALLCROSS  v.  PALMER    (1851). 
16  Q.  B.  747. 
Eiectment.      The    plaintiff's    lessor   claimed    as   devisee   of    Francis 
Brookes,   who   was   heir-at-law   of  his  brother   William   Brookes.     The 
defendant  claimed  in  right  of  his  wife  Appollina,  as  devisee  of 
William  Brookes.     The  will  appeared  to  have  been  drawn  orig- 
inally so  as  to  give  the  property  in  fee  to  Francis,  and  to  have  been 
changed  in  William's  handwriting  so  as  to  give  it  to  Francis  for  life 


12 — Field,  C.  J.,  in  Com.  v.  Trefethen, 
157  Mass.  185,  31  N.  E.  961  (1892):  "The 
fundamental  proposition  is  that  an  inten- 
tion in  the  mind  of  a  person  can  only 
be  shown  by  some  external  manifestation, 
which  must  be  some  look  or  appearance 
of  the  face  or  body,  or  some  act  or 
speech;  and  that  proof  of  either  or  all  of 
these  for  the  sole  purpose  of  showing  state 
of  mind  or  intention  of  the  person  is  proof 
of  a  fact  from  which  the  state  of  mind 
or  intention  may  be  inferred.  .  .  .  Al- 
though evidence  of  the  conscious  voluntary 
declarations  of  a  person  as  indications  of 
his  state  of  mind  has  in  it  some  of  the 
elements  of  hearsay,  yet  it  closely  resem- 
bles evidence  of  the  natural  expression  of 
feeling  which  has  always  been  regarded 
in  the  law,  not  as  hearsay,  but  as  original 
evidence;  and  when  the  person  making  the 
declarations  is  dead,  such  evidence  is  often 
not  only  the  best,  but  the  only  evidence  of 
what  was  in  his  mind  at  the  time.  .  .  . 
It  is  not  necessary  in   the  present  case  to 


determine  what  limitations  in  practice,  if 
any,  must  be  put  upon  the  admission  of 
this  kind  of  evidence,  because  all  the  limi- 
tations exist  which  have  ever  been  sug- 
gested as  necessary.  The  person  making 
the  declaration,  if  one  was  made,  is  dead; 
.  .  .  and  the  declaration,  if  made,  was  made 
under  circumstances  which  exclude  any 
suspicion  of  an  intention  to  make  evidence 
to   be   used   at   the  trial." 

Start,  C.  J.,  in  State  v.  Hayward,  62 
Minn.  474,  65  N.  W.  63  (189s);  evidence 
of  the  murdered  person's  statements  as  to 
having  an  engagement  to  meet  the  de- 
fendant was  admitted  as  a  "verbal  act": 
"It  was  not  admissible,  in  my  opinion,  on 
the  ground  that  it  tended  to  'characterize 
her  subsequent  acts  and  her  departure  on 
the  fatal  ride  soon  after  she  made  the 
statement,' — that  is,  that  it  was  a  part  of 
the  res  gestae, — for  the  reason  that  her 
statement  neither  accompanied  nor  charac- 
terized any  act  relevant  to  the  issue.  But 
it   was   relevant   to   the   issue   to   show  that 


No.  353.  II.      BODILY  OR  MENTAL  CONDITION-.  333 

with  remainder  to  Appollina.    The  question  was  whether  the  alterations 
had  been  made  before  or  after  the  execution  of  the  will. 

Campbell,  L.  C.  J. :  "The  evidence  relied  upon  consisted  of  declara- 
tions by  the  testator,  frequently  made,  before  and  nearly  down  to  the 
time  when  the  will  was  executed,  that  he  intended  to  make  provision 
by  his  will  for  Appollina  Biddulph  (the  now  defendant,  Mrs.  Palmer), 
coupled  with  the  fact  that  without  this  alteration  the  will,  which  dis- 
poses of  the  whole  of  his  property,  real  and  personal,  makes  no  pro- 
vision for  her.  ...  It  may  be  convenient,  first,  to  consider  the  question, 
whether,  if  in  a  will  which  is  not  in  the  handwriting  of  the  testator 
an  alteration  appears,  evidence  might  be  received  of  previous  declara- 
tions by  him  that  he  intended  to  dispose  of  his  property  in  the  manner 
in  which  it  is  disposed  of  by  the  will  in  its  altered  form.  If  the  draft 
of  the  will  could  be  produced,  corresponding  with  the  will  in  its  altered 
form,  would  it  not  be  admissible  evidence,  and  might  not  the  jury  infer 
from  it  that  before  the  will  was  executed  the  draft  and  the  will  had 
been  compared,  and  the  mistake  rectified?  Would  not  written  or  verbal 
instructions  from  the  testator  to  his  solicitor  to  draw  the  will  in  the 
altered  form  be  equally  admissible?  In  what  respect  do  such  verbal 
instructions  differ,  for  this  purpose  from  a  contemporaneous  declara- 
tion by  the  testator  to  another  person  that  he  had  determined  in  his 
will  to  dispose  of  his  property  in  the  manner  carried  into  effect  by  the 
will  as  altered?  What  distinction  can  be  drawn  between  the  draft  of 
the  will  or  the  written  instructions  for  the  will,  and  the  verbal  declara- 
tion of  the  testator's  intention,  except  as  to  the  strength  of  the  evidence 
which  they  respectively  aft'ord?  As  to  the  admissibility,  they  all  seem  to 
rest  on  the  same  principle;  and,  if  the  verbal  declaration  of  intention 
must  be  rejected,  so  must  the  draft  of  the  will  with  the  initials  of  the 
testator  affixed  to  it.  It  would  not  be  very  creditable  to  the  law  if 
Such  evidence  were  to  be  excluded;  as  a  logical  inference  might  be 
fairly  drawn  from  it  respecting  the  priority  of  two  events,  that  is  to  say, 
the  making  of  the  alteration  and  the  execution  of  the  will ;  and  I  am  not 
aware  of  any  principle,  rule  of  law,  decided  case,  or  dictum  against 
the  admissibility  of  such  evidence."^-' 


SUGDEN  V.  LORD  ST.  LEONARDS    (1876). 
L.  R.  I  P.  D.  154. 
CocKBURN,  L.   C.  J. :     "This  is  an  appeal  against  a  decree  of  the 
President  of  the   Probate   Division,   granting  probate  of  a  paper  pur- 
porting to  be  the  substance  of  the  will  of  the  late  Lord  St.  Leon- 
***       ,  ards.     The  will  was  last  seen  on  the  20th  of  August,   1873 ;  the 
death  of  the  testator  took  place  on  the  29th  of  January,  1875.    The  will 

she  did  meet  the  defendant,  and  evidence  ment,  to  assign  a  wrong  reason  for  a  cor- 
of  her  declarations  of  an  intention  and  pur-  rect  conclusion,  which  may  lead  to  com- 
pose to  meet  him  was  admissible  as  original  plications  in  future  cases." 
evidence  to  prove  that  she  did  in  fact  in-  Compare  the  authorities  cited  in  \V.,  §§ 
tend  to  meet  him.  To  sustain  it  on  the  1725,  1726;  and  Xos.  30,  48,  ante. 
giound  that  the  statement  of  the  deceased  13 — Compare  the  authorities  cited  in  W., 
Wis  a  part  of  the  res  gestae,   in  my  judg-  §§   112,    1735;   and   Nos.   30,  48,  ante. 


334 


HEARSAY   rule:    (b)    EXCEPTIONS. 


No.  353. 


was  kept  in  a  small  box  placed  on  the  floor  of  a  room  called  the  saloon, 
on  the  ground  floor  of  the  testator's  house.  Upon  his  death  it  was 
looked  for  in  that  box  by  the  solicitor  employed  by  the  executors,  and 
it  could  not  be  found.  Several  questions  arise  from  this  state  of  facts. 
In  the  first  place,  was  the  will  destroyed  by  the  testator  animo  revocandi 
or  not;  secondly,  can  secondary  evidence  be  given  of  its  contents; 
thirdly,  if  so,  have  we  satisfactory  evidence  of  the  contents ;  and  lastly^ 
if  the  evidence  is  satisfactory,  so  far  as  it  goes,  but  not  altogether  com- 
plete, ought  probate  to  be  granted,  so  far  as  the  evidence  which  we  have 
before  us  shows  what  were  the  contents  ?  .  .  .  The  last  time  the  will 
was  seen  was  by  Miss  Sugden,  on  the  2oth  of  August,  1873.  Lord  St. 
Leonards  was  taken  ill  in  September,  1873,  and  was  confined  to  his  room 
from  that  time  to  Christmas,  1873,  and  during  the  whole  of  that  time 
the  box  was  kept  by  Miss  Sugden,  as  she  tells  us,  in  her  own  room; 
when  he  again  rejoined  the  family  down  stairs,  she  replaced  the  box 
in  the  saloon,  that  he  might  not  miss  it,  and  it  remained  there  until  his 
last  illness  commenced,  in  March,  1874.  It  was  then  again  taken  posses- 
sion of  by  Miss  Sugden,  and  kept  by  her  until  Lord  St.  Leonards' 
death;  therefore  it  could  only  have  been  got  at  by  him  between  Christ- 
mas, 1873,  and  March,  1874.  Long  after  March,  when  he  was  stricken 
with  his  last  illness,  and  from  which  time  he  was  confined  to  his  own 
bed-room,  he  again  and  again  referred  to  the  various  provisions  he  had 
made  by  the  will,  in  other  words,  referred  to  the  will  itself  as  still 
subsisting,  and  this  again  adds  to  the  vast  improbability  of  his  having 
destroyed  the  will.  .  .  .  Declarations  of  deceased  persons  are  in  several 
instances  admitted  as  exceptions  to  the  general  rule;  where  such  per- 
sons have  had  peculiar  means  of  knowledge  and  may  be  supposed  to 
have  been  without  motive  to  speak  otherwise  than  according  to  the 
truth.  It  is  obvious  that  a  man  who  has  made  his  will  stands  pre- 
eminently in  that  position.  He  must  be  taken  to  know  the  contents  of 
the  instrument  he  has  executed.  If  he  speaks  of  its  provisions,  he  can 
have  no  motive  for  misrepresenting  them,  except  in  the  rare  instances 
in  which  a  testator  may  have  the  intention  of  misleading  by  his  state- 
ments respecting  his  will.  Generally  speaking,  statements  of  this  kind 
are  honestly  made,  and  this  class  of  evidence  may  be  put  on  the  same 
footing  with  the  declarations  of  members  of  a  family  in  matters  of  pedi- 
gree. ...  I  am  at  a  loss  to  see  why,  when  such  evidence  is  held  to  be 
admissible  for  the  two  purposes  just  referred  to,  it  should  not  be  equally 
receivable  as  proving  the  contents  of  the  will.  If  the  exception  to  the 
general  rule  of  law  which  excludes  hearsay  evidence  is  admitted,  on 
account  of  the  exceptional  position  of  a  testator,  for  one  purpose,  why 
should  it  not  be  for  another,  where  there  is  an  equal  degree  of  knowl- 
edge, and  an  equal  absence  of  motive  to  speak  untruly?"^* 


14 — The  following  reasoning  was  used 
by  Hannsn,  J.,  at  the  trial  below:  "Be- 
lieving, as  I  do,  the  testator  made  these 
statements  [alluding  to  the  existence  of 
the    will]     showing    a    belief    in    his    mind 


that  the  will  was  in  existence  at  a  time 
subsequently  to  that  at  which  he  could 
have  revoked  it,  I  am  led  to  the  conclu- 
sion that  he  had  not  in  fact  revoked  it  at 
any  time   when   he  had  the  opportunity  of 


No.  353.  II.      BODILY  OR  MENTAL  CONDITION.  335 

Jessel,  M.  R. :  "[The  reasons^^  for  the  exceptions  to  the  Hearsay 
rule]  all  exist  in  the  case  of  a  testator  declaring  the  contents  of  his 
will.  .  .  .  Having  regard  to  the  reasons  and  principles  which  have 
induced  the  Courts  of  this  country  to  admit  exceptions  in  the  other  cases 
to  which  I  have  referred,  we  should  be  equally  justified  and  equally 
bound  to  admit  it  in  this  case.  .  .  .  We  have  a  witness  peculiarly  likely 
to  know  what  the  contents  of  the  will  were.  Besides  that,  we  have  a 
witness  of  unimpeached  and  unimpeachable  integrity.  We  have  the 
gratification  of  knowing,  in  deciding  this  case,  that  there  has  been  no 
question  raised  as  to  the  credibility  of  Miss  Sugden,  and  this  appears 
to  be  an  answer  to  that  assumed  danger  which  might  apply  to  other 
cases  in  allowing  such  proof  as  this  to  establish  wills.  .  .  .  The  case  is 
singular  in  that  respect,  and  I  should  think  it  is  very  likely  to  remain 
singular,  as  regards  subsequent  cases ;  therefore  there  is  no  danger  in 
admitting  this  evidence  in  this  particular  case,  and  I  see  no  reason 
why  we  should  refuse  to  do  justice  now  because  other  persons,  not 
credible  witnesses,  may  be  induced  in  other  cases  to  attempt  to  sub- 
stantiate fictitious  wills." 

James,  L.  J. :  "In  this  case  it  is  conceded  that  every  one  of  those 
declarations  was  admissible  and  was  properly  admitted  foi  some  purpose 
in  the  cause,  and  thereby  those  declarations  of  the  testator  have  become 
legitimately  known  to  me.  I  believe  them  to  have  been  made  by  him, 
and  I  believe  them  to  be  true,  and,  having  those  declarations  before  me 
and  so  believing  them,  it  would  be  a  judicial  lie  if  I  were  to  pretend 
that  I  did  not  act  upon  them  in  coming  to  the  conclusion  that  the  evi- 
dence of  the  witness  as  to  the  actual  contents  of  the  will  is  true." 

Mellish,  L.  J. :  "The  difficulty  I  feel  is  this,  that  I  cannot  satisfac- 
torily to  my  own  mind  find  any  distinction  between  the  statement  of  a 
testator  as  to  the  contents  of  his  will,  and  any  other  statement  of  a 
deceased  person  as  to  any  fact  peculiarly  within  his  knowledge,  which, 
beyond  all  question,  as  the  law  now  stands,  we  are  not  as  a  general 
rule  entitled  to  receive.  ...  A  declaration  after  he  has  made  his  will, 
of  what  the  contents  of  the  will  are,  is  not  a  statement  of  anything 
which  is  passing  in  his  mind  at  the  time;  it  is  simply  a  statement  of  a 
fact  within  his  knowledge,  and  therefore  you  cannot  admit  it  unless  you 
can  bring  it  within  some  of  the  exceptions  to  the  general  rule  that 
hearsay  evidence  is  not  admissible  to  prove  a  fact  which  is  stated  in  the 
declaration.  It  does  not  come  within  any  of  the  rules  which  have  been 
hitherto  established,  and  I  doubt  whether  it  is  an  advisable  thing  to 
establish  new  exceptions  in  a  case  which  has  never  happened  before, 
and  may  never  happen  again,  for  you  then  establish  an  exception  which 
more  or  less  throws  a  doubt  on  the  law."'" 

getting    access    to    it.  ...  I    come    to    the  15 — See  these  reasons   quoted   ante,   No. 

conclusion    that    his    declarations    down    to  290,   from  the  foregoing  part  of  this  opin- 

the    latest    period    of   his    life  show   that    he  ion. 

died    under    the    belief    that    that    will    was  16 — Lord     Blackburn,     in     IVoodvard    v. 

still    in    existence,    and    rebut   the   presump-  Goulstonc,  L.   R.    11   App.  Cas.  469  (1886): 

tion  that  he  had  revoked  it."  "I    wish    to    guard    myself,    as    the    Lord 


336  HEARSAY    RULE :    (b)    EXCEPTIONS.  No.  354. 

BOYLAN  V.  MEEKER    (i860). 
28  N.  J.  L.  276. 

Ejectment;  issue  as  to  the  validity  of  a  will.  Whelpley,  J.:  "If 
the  due  and  formal  execution  of  a  will  can  be  proved  by  the  testimony 
of  witnesses  present  when  it  was  executed,  the  will  in  question 
was  so  proved.  Four  witnesses  of  respectability  and  character 
swear  they  were  present,  and  saw  it  executed.  Their  evidence  is  so 
minute  in  its  details  as  to  cut  off  all  possibility  of  mistake.  They  either 
saw  what  they  testify  or  they  are  perjured.  .  .  .  Upon  the  trial,  the 
plaintiff  set  up  against  the  will:  i.  Incapacity.  2.  Forgery  of  the 
will.  3.  Fraud  practiced  on  Meeker  by  inducing  him  to  sign  a  paper  with- 
out- knowing  it  was  a,  will.  These  defences  do  not  support  one  another. 
The  evidence  of  incapacity  does  not  tend  to  show  that  the  instrument 
produced  was  a  forgery  or  a  fraud.  .  .  .  The  verdict  must  be  supported, 
if  at  all,  because  the  will  was  either  forged  or  a  fraud  upon  Meeker, 
effected  by  substituting  one  paper  for  another. 

"It  is  manifest,  from  the  state  of  the  case  and  the^  course  of  the  argu- 
ment in  this  court  upon  this  rule,  that  the  plaintiffs  relied  upon  the  dec- 
larations and  conduct  of  Meeker,  both  before  and  after  the  day  of  exe- 
cution, to  show  that  while  living  he  never  knew  of  the  existence  of  such 
a  will,  and  that  therefore  he  had  never  knowingly  executed  the  paper. 
Upon  the  issue  as  to  his  sanity  when  he  executed  the  paper,  his  con- 
duct and  declarations,  both  before  and  after  that  time  tending  to  show 
his  want  of  capacity  at  the  time,  were  competent  evidence  for  the  plain- 
tiffs. All  the  authorities  support  that  position.  But  the  case  clearly 
shows  that  these  declarations  were  offered,  received,  and  pressed 
upon  the  jury  as  the  proper  foundation  of  a  verdict  against  the 
will,  on  the  broad  ground,  that  even  if  the  testator  had  testa- 
mentary capacity,  yet  that  he  never  executed  the  paper  as  a  will  because 
these  declarations  showed  his  utter  ignorance  of  any  such  paper,  and 
were,  if  true,  inconsistent  with  the  idea  of  its  execution  by  him.  The 
admissibility  of  this  evidence  on  the  issue  of  fraud  and  forgery  has  been 
argued  on  two  grounds,  first,  that  they  were  exterior  manifestations  of 
an  inward  condition  of  mind,  that  is  to  say,  ignorance  of  the  existence 
of  the  will.  It  is  argued  .  .  .  that  sanity  and  ignorance  are  both  states 
of  mind,  that  exterior  manifestations  must  be  relied  upon  to  prove  both. 
If  this  were  so,  there  might  be  some  force  in  the  argument.  But  .  .  . 
the  exterior  manifestations  of  insanity  are  involuntary,  those  of  knowl- 
edge purely  voluntary.  .  .  .  The  devisor  may  to  secure  his  own  peace 
and  comfort  during  life  .  .  .  conceal  the  nature  of  his  testamentary 
dispositions  and  make  statements  calculated  and  intended  to  deceive  those 

Chancellor  did,  against  being  supposed,  ex-  in    Sugden   v.    Lord    St.    Leonards,    or    the 

cept  so   far  as  it  is  necessary  for  the  pres-  propositions    of    law    there    laid    down.       I 

ent    case,    to    be    either    affirming    or    dis-  wish   to   leave  them  just   in   the   same   way 

affirming   the    decision    which    was   come   to  as    before,    as    far    as    I    am   concerned." 


No.  355.  II.      BODILY  OR  MENTAL  CONDITION.  337 

with  whom  he  is  conversing.     He  has  neither  the  sanctity  of  an  oath 
or  the  strong  bond  of  self-interest  to  secure  his  adherence  to  the  truth."^' 


RUSLING  V.  RUSLING  (1883). 
5<5  N.  J.  Eq.  60s,  <^07' 

DixoN,  J.:  "The  appellants,  a  son  and  the  widow  of  Gershom  Rus- 
ling,  deceased,  impeach  the  validity  of  his  will,  executed  with  due  for- 
mality on  January  4th,  1875.  .  .  .  Two  grounds  of  validity  are 
"***^  alleged  by  the  caveators:  first,  want  of  testamentary  capacity 
in  the  testator;  second,  undue  influence  by  the  proponents.  It  is  not 
necessary  to  state  in  this  opinion,  with  any  degree  of  detail,  the  evi- 
dence offered  to  show  the  testator's  mental  incapacity  at  the  time  of 
executing  this  will,  January  4th,  1875.  It  is  enough  to  say  that  in  our 
judgment  it  establishes  nothing  more  than  an  occasional  forgetfulness 
of  the  names  and  faces  of  persons  with  whom  he  did  not  come  into 
frequent  contact.  .  .  .  For  the  proof  of  undue  influence,  the  caveators 
mainly  rely  upon  declarations  of  the  testator,  made  some  time  before 
and  some  time  after  the  execution  of  the  will,  respecting  the  conduct 
towards  him  of  the  favored  legatees.  These  declarations  are  not  ad- 
missible as  evidence  of  the  facts  which  they  were  offered  to  prove. 

"When  undue  influence  is  set  up  in  impeachment  of  a  will,  the 
ground  of  invalidity  to  be  established  is  that  the  conduct  of  others  has 
so  operated  upon  the  testator's  mind  as  to  constrain  him  to  execute  an 
instrument  to  which  of  his  free  will  he  would  not  have  assented.  This 
involves  two  things :  first,  the  conduct  of  those  by  whom  the  influence 
is  said  to  have  been  exerted ;  second,  the  mental  state  of  the  testator, 
as  produced  by  such  conduct,  which  may  require  a  disclosure  of  the 
strength  of  mind  of  the  decedent  and  his  testamentary  purposes,  both 
immediately  before  the  conduct  complained  of  and  while  subjected  to 
its  influence.  In  order  to  show  the  testator's  mental  state  at  any  given 
time,  his  declarations  at  that  time  are  competent,  because  the  conditions 
of  the  mind  are  revealed  to  us  only  by  its  external  manifestations,  of 
which  speech  is  one.  Likewise,  the  state  of  mind  at  one  time  is  com- 
petent evidence  of  its  state  at  other  times  not  too  remote,  because  mental 
conditions  have  some  degree  of  permanency.  Hence  in  an  inquiry  re- 
specting the  testator's  state  of  mind,  before  or  pending  the  exertion  of 
the  alleged  influence,  his  words,  as  well  as  his  other  behavior,  may  be 
shown  for  the  purpose  of  bringing  into  view  the  mental  condition  which 
produced  them,  and,  through  that,  the  antecedent  and  subsequent  con- 
ditions. To  this  extent  his  declarations  have  legal  value.  But  for  the 
purpose  of  proving  matters  not  related  to  his  existing  mental  state,  the 
assertions  of  the  testator  are  mere  hearsay.  They  cannot  be  regarded 
as  evidence  of  previous  occurrences,  unless  they  come  within  one  of  the 
recognized  exceptions  to  the  rule  excluding  hearsay  testimony."^^ 

17 — Compare  the  authorities  cited  in  W.,  i8 — Colt.  J.,  in  Shatter  v.  Bumstead,  99 

§    1736.  Mass.    122    (1868):    "When    used    for   such 


338  HEARSAY  rule:  (b)  exceptions.  No.  356. 

MOONEY  V.  OLSEN    (1879). 
22  Kan.  6p,  /8. 

Action  brought  by  Olsen  against  Mooney  and  another  to  set  aside 

the  will  of  Lydia  Foster,  who  died  July  8,   1876.     Trial  by  a  jury,  at 

the  March  term,  1877,  of  the  district  court,  and  verdict  against 

**^"      the   will.     The   defendants   below  filed  their  motion   for  a   new 

trial,  which  was  overruled. 

Brewer,  J.:  "Action  to  set  aside  a  will.  Trial  by  a  jury,  and  ver- 
dict against  the  will.  The  first  matter  which  we  shall  notice  is  the 
alleged  error  in  the  admission  of  testimony.  The  will  was  challenged 
on  the  ground  of  undue  influence,  as  well  as  on  the  ground  that  the 
decedent,  at  the  time  of  its  execution,  was  not  of  sound  mind  and  mem- 
ory. It  appeared  that  the  decedent  was  taken  sick  July  3d,  and  died 
on  the  8th;  that  Dennis  Mooney  and  Mrs.  Mary  McCarthy,  the  prin- 
cipal devisees  and  legatees  under  the  will,  were  in  attendance  upon 
her  during  most  of  this  time,  and  that  the  will  was  written  the  day 
before  her  death.  Over  objection,  the  court  permitted  testimony  of  the 
conduct  of  these  devisees,  not  merely  at  the  time  of  making  the  will, 
but  also  while  present  at  the  home  of  the  decedent  during  the  sick- 
ness, and  immediately  after  her  death ;  also  of  the  statements  of  the 
decedent  made  prior  to  her  sickness,  (some  a  long  time  prior,)  showing 
estrangement  from  and  ill  feeling  towards  Dennis  Mooney;  also  of 
letters  from  him  to  her  tending  to  show  the  same  state  of  facts;  also 
of  an  engagement  of  marriage,  expected  to  be  consummated  on  the  tenth 
of  July,  to  one  who  was  present  during  most  of  the  sickness,  and  was 
not  mentioned  in  the  will.  .  .  . 

"The  question  of  undue  influence  is  one  of  peculiar  character.  It 
does  not  arise  until  after  the  death  of  the  one  who  alone  fully  knows 
the  influences  which  have  produced  the  instrument.  It  does  not  touch 
the  outward  act,  the  form  of  the  instrument,  the  signature,  the  acknowl- 
edgment ;  it  enters  the  shadowy  land  of  the  mind  in  search  of  its  con- 
dition and  processes.  Was  the  mind  strong,  or  weak?  clear  of  com- 
prehension, or  only  feeble  grasping  the  facts  suggested?  Was  the  will 
resolute  and  firm,  or  enfeebled  by  disease  and  bodily  weakness?  What 
prompted  the  making  of  the  will?  Was  is  the  thought  of  the  testatrix, 
or  the  suggestion  o£  interested  parties  ?  What  influences  were  brought 
to  bear  to  secure  its  execution,  or  the  disposition  of  any  specific  prop- 
erty ?  These  are  inquiries  always  difficult  of  solution,  often  made  more 
so  by  the  fact  that  the  parties  most  competent  to  give  information  are 

purpose,   they  are  mere  hearsay,  which  by  security  which  it  is  essentia]  to  preserve"; 

reason    of    the    death    of    the    party    whose  they   are   thus   inadmissible   so   far   as   they 

statements    are    so    offered,    can    never    be  form    "a    declaration    or    narrative    to   show 

explained    or    contradicted    by    him.        Ob-  the  fact   of  fraud  or  undue  influence  at  a 

tained,    it   may  be,   by   deception   or   persua-  previous    period." 

sion,    and    always    liable    to    the    infirmities  Compare    the   authorities   cited   in    W.,   5 

of   human    recollection,   their   admission    for  1738,    notes     1,    2,    3. 
such   purpose   would   go   far  to  destroy  the 


No.  356.  II.      BODILY  OR  MENTAL  CONDITION.  339 

the  ones  most  interested  to  withhold  it.  To  fully  inform  the  jury,  they 
should  know  the  condition  of  the  testatrix's  mind  at  the  time  of  the 
execution,  the  circumstances  attending  the  execution,  the  relations  and 
affections  of  the  testatrix,  and  such  other  matters  as  tend  to  show  what 
disposition  if  in  health  and  strength,  and  uninfluenced,  she  would  prob- 
ably have  made  of  her  property.  This  opens  a  broad  field  of  inquiry, 
and  gives  to  such  a  contest  over  a  will  a  wider  scope  of  investigation 
than  exists  in  ordinary  litigation.  'Put  Yourself  in  His  Place,'  is  the 
title  of  a  recent  popular  novel,  and  is  appropriate  to  indicate  the  scope 
of  such  an  inquiry.  .  .  . 

"It  is  sometimes  broadly  stated  that  the  declarations  of  a  testator, 
whether  prior  or  subsequent  to  the  execution  of  the  will,  are  inadmis- 
sible for  the  purpose  of  impeaching  it.  In  a  certain  sense  this  is  doubt- 
less true.  As  a  mere  matter  of  im.peaching  the  will,  they  are  hearsay 
and  inadmissible.  They  are  not  like  statements  of  an  ancestor  in 
derogation  of  title  or  elimination  of  estate,  which,  being  declarations 
against  interest,  are  admissible  against  the  heir,  for  there  is  no  adverse 
interest  in  a  devisor  against  the  will  or  the  devisee.  They  are  more 
like  declarations  of  a  grantor,  after  grant,  in  limitation  of  his  grant, 
and  are  strictly  hearsay.  Thus,  if  a  testator,  after  executing  a  will, 
should  say  that  the  will  was  forced  from  him,  or  that  it  was  executed 
against  his  will,  and  through  undue  influence,  such  statement,  of  itself, 
would  be  hearsay  and  inadmissible.  .  .  , 

"But  while  declarations  are  not  admissible  as  mere  impeachment 
of  the  validity  of  a  will,  they  are  admissible  as  evidence  of  the  testator's 
state  of  mind.  A  man's  words  show  his  mental  condition.  It  is  com- 
mon to  prove  insanity  by  the  party's  sayings  as  well  as  by  his  acts. 
One's  likes  and  dislikes,  fears  and  friendships,  hopes  and  intentions, 
are  shown  by  his  utterances;  so  that  it  is  generally  true  that,  when- 
ever a  party's  state  of  mind  is  a  subject  of  inquiry,  his  declarations  are 
admissible  as  evidence  thereof.  In  other  words  a  declaration  which 
is  sought  as  mere  evidence  of  an  external  fact,  and  whose  force  depends 
upon  its  credit  for  truth,  is  always  mere  hearsay  if  not  made  upon  oath ; 
but  a  declaration  which  is  sought  as  evidence  of  what  the  declarant 
thought  or  felt,  or  of  his  mental  capacity,  is  of  the  best  kind  of  evidence. 
.  .  .  Therefore  where,  as  in  a  case  like  this,  the  circumstances  attend- 
ing the  execution  raise  a  doaibt  as  to  the  mental  strength  of  the  tes- 
tatrix, evidence  that  the  disposition  of  the  property  runs  along  the  line 
of  her  established  friendships  and  previously-expressed  intentions  tends 
strongly  against  the  idea  of  any  undue  influence ;  while  evidence  that 
it  is  contrary  to  such  friendships  and  intentions  makes  in  favor  of  im- 
proper influences.  The  testimony  of  her  declarations  shows  a  state  of 
mind  imfriendly  to  one  of  the  principal  devisees,  and  his  letters  to  her 
indicate  a  mutual  understanding  of  this  estrangement  and  ill-will.  Such 
an  estrangement  is  out  of  harmony  with  the  recognition  in  the  will."'" 

19 — Compare  the  authorities  cited  in   W.,    §    1738,    note    4. 


340         HEARSAY  rule:  (b)  exceptions.      No.  357. 

WATERMAN  v.  WHITNEY    (1854). 

//  N.  Y.  757. 

Probate  of  a  will,  contested  on  the  grounds  both  of  mental  unsound- 
ness and  of  undue  influence.  After  several  witnesses  had  been  called 
and  examined  on  the  part  of  the  defendants,  to  prove  the  mental 
capacity  of  the  testator,  all  of  whom  had  testified  to  facts  tending 
to  show  that  the  mind  and  the  memory  of  testator,  who  had  been  a 
man  of  vigorous  intellect,  were  impaired  at  and  previous  to  the  time 
of  the  execution  of  the  will,  and  that  he  had  not  mental  capacity  to 
make  a  will,  the  defendants  called  one  Emory  as  a  witness,  by  whom 
they  offered  to  prove  that  the  testator,  after  the  execution  of  the  will, 
had  stated  to  the  witness  how  he  had  disposed  of  his  property  in  his 
will,  which  was  in  a  manner  entirely  different  from  the  actual  disposi- 
tion of  it  by  the  will  in  question.  This  evidence  was  objected  to;  the 
^court  sustained  the  objection,  and  the  defendants'  counsel  excepted. 

Sei.den,  J. :  "The  mental  strength  and  condition  of  the  testator  is 
directly  in  issue  in  every  case  of  alleged  undue  influence ;  and  the  same 
evidence  is  admissible  in  every  such  case,  as  in  cases  where  insanity  or 
absolute  incompetency  is  alleged.  It  is  abundantly  settled  that  upon 
either  of  these  questions,  the  declarations  of  the  testator,  made  at  or 
before  the  time  of  the  execution  of  the  will,  are  competent  evidence. 
The  only  doubt  which  exists  on  the  subject  is  whether  declarations 
made  subsequent  thereto  may  also  be  received.  ,  .  .  The  insanity  or  im- 
becility of  the  testator  subsequent  to  making  the  will  may  be  proved, 
in  connection  with  other  evidence,  with  a  view  to  its  reflex  influence 
upon  the  question  of  his  condition  at  the  time  of  executing  the  will. 
.  .  .  Here  the  offer  was  to  prove  declarations  of  the  testator,  stating  that 
contents  of  the  will  to  be  entirely  different  from  what  they  were  in  fact ; 
and  these  declarations  were  offered  in  connection  with  other  evidence 
bearing  upon  the  competency  of  the  testator  at  and  before  the  execution 
of  the  will.  If  evidence  of  the  mental  condition  of  the  testator  after 
the  execution  of  the  will  is  admissible  in  any  case,  as  to  his  capacity 
when  the  will  was  executed  (and  the  competency  of  such  proof  seems 
to  be  sustained  by  many  authorities  and  contradicted  by  none)  ;  then  it 
is  clear  that  the  testimony  offered  here  should  have  been  admitted. 
.  .  .  There  is  no  conflict  between  the  doctrine  here  advanced  in  regard 
to  the  admissibility  of  the  species  of  evidence  in  question,  and  the  rule 
before  adverted  to,  which  excludes  it  when  the  issue  is  as  to  the  revoca- 
tion of  a  will.  The  difference  between  the  two  cases  consists  in  the 
different  nature  of  the  inquiries  involved.  One  relates  to  a  voluntary 
and  conscious  act  of  the  mind ;  the  other  to  its  involuntary  state  or 
condition.  To  receive  evidence  of  subsequent  declarations  in  the  former 
case,  would  be  attended  with  all  the  dangers  which  could  grow  out  of 
changes  of  purpose,  or  of  external   motives   operating  upon  an  intelH- 


No.  359.  II.      BODILY  OR  MENTAL  CONDITION.  341 

gent  mind.     No  such  dangers  would  attend  the  evidence  upon  inquiries 
in  relation  to  the  sanity  or  capacity  of  the  testator."-" 


12.      SPONTANEOUS  EXCLAMATIONS. 

THOMPSON  V.  TREVANION    (1693). 

Skinner  402. 

Action  for  assault  and  battery  upon  the  wife  of  the  plaintiff,  Lord 
Holt  "allowed  that  what  the  wife  said  immediate  upon  the  hurt  received 
and  before  that  she  had  time  to  devise  01:  contrive  anything  for 
her  own  advantage,  might  be  given  in  evidence."-^ 


INSURANCE  COMPANY  v.  MOSLEY    (1869). 

8  Wall.  397. 

SwAYNE,  J. :  "This  is  a  writ  of  error  to  the  Circuit  Court  of  the 
United  States  for  the  Northern  District  of  Illinois.  The  action  was 
upon  a  policy  of  insurance.  It  insured  Arthur  H.  Mosley  against 
''^"  loss  of  life,  or  personal  injury  by  an  accident  within  the  mean- 
ing of  the  instrument,  and  was  issued  to  Mrs.  Arthur  H.  Mosley,  the 
wife  of  the  assured,  for  her  benefit.  The  declaration  was  in  assumpsit. 
The  defendant  pleaded  the  general  issue,  and  the  cause  was  tried  by 
a  jury.  The  plaintiff  recovered.  During  the  trial  a  bill  of  exceptions 
was  taken  by  the  plaintiff  in  error,  by  which  it  appears  that  the  con- 
test between  the  parties  was  upon  the  question  of  fact,  whether  Arthur 
H.  Mosley,  the  assured,  died  from  the  effects  of  an  accidental  fall 
down  stairs  in  the  night,  or  from  natural  causes.  The  defendant  in 
error  was  called  as  a  witness  in  her  own  behalf,  and  testified,  'that  the 
assured  left  his  bed  Wednesday  night,  the  i8th  of  July,  1866,  between 
12  and  I  o'clock ;  that  when  he  came  back  he  said  he  had  fallen  dowm 
the  back  stairs,  and  almost  killed  himself;  that  he  had  hit  the  back  part 
of  his  head  in  falling  down  stairs;  .  .  .  she  noticed  that  his  voice 
trembled;  he  complained  of  his  head,  and  appeared  to  be  faint  and  in 

20 — Compare  the  authorities  cited  in  W.,  tion    of    some    matter    which    happened    at 

§§  228,  229,   1740;  and  No.  38,  ante.  another    time";    citing    Thompson    v.    Tre- 

21 — Aveson  v.  Kinnaird,  6  East  193  vanion. 
(1805);  Counsel:  "Declarations  by  the  wife  R.  v.  Foster,  6  C.  &  P.  325  (1834); 
upon  her  elopement  from  her  husband,  ac-  manslaughter  by  driving  a  cabriolet  over 
cusing  him  of  misconduct,  could  not  be  a  person;  a  statement  made  by  the  de- 
given  in  evidence  against  him  in  an  action  ceased,  to  one  who  did  not  see  the  acci- 
against  the  adulterer."  EUenhorough,  L.  dent  but  immediately  afterward  heard  the 
C.  J.:  "It  is  not  so  clear  that  her  dec-  deceased  groan  and  went  up  and  asked  what 
larations  made  at  the  time  would  not  be  was  the  matter,  was  admitted;  Park,  J.: 
evidence  under  any  circumstances.  If  she  "It  was  the  best  possible  testimony  that 
declared  at  the  time  that  she  fled  from  under  the  circumstances  can  be  adduced 
immediate  terror  of  personal  violence  from  to  show  what  it  was  that  had  knocked 
the  husband,  I  should  admit  the  evidence;  the  deceased  down";  citing  Aveson  v. 
though    not   if   it    were    a   collateral    declara-  Kinnaird. 


342  HEARSAY  rule:  (b)  exceptions.  No.  359. 

great  pain.'  To  the  admission  of  all  that  part  of  the  testimony  which 
relates  to  the  declarations  of  the  assured,  about  his  falling  down  stairs, 
and  the  injuries  he  received  by  the  fall,  the  counsel  of  the  defendants 
objected.  The  court  overruled  the  objection,  and  the  defendants  ex- 
cepted. William  H.  Mosley,  son  of  the  assured,  testified,  in  behalf 
of  the  plaintiff  'that  he  slept  in  the  lower  part  of  the  building  occupied 
by  his  father;  that  about  12  o'clock  of  the  night  before  mentioned 
he  saw  his  father  lying  with  his  head  on  the  counter,  and  asked  him 
what  was  the  matter ;  he  replied  that  he  had  fallen  down  the  back  stairs 
and  hurt  himself  very  badly.'  The  defendants  objected  to  both  the  ques- 
tion and  answer. 

This  statement  presents  the  questions.  .  .  .  They  arc,  whether  the  court 
erred  in  admitting  the  declarations  of  the  assured,  as  to  his  bodily  in- 
juries and  pains,  and  whether  it  was  error  to  admit  such  declarations  to 
prove  that  he  had  fallen  down  the  stairs.  It  is  to  be  remarked  that  the 
declarations  of  the  former  class  all  related  to  present  existing  facts  at 
the  time  they  were  made.  Those  of  the  latter  class  were  made  imme- 
diately, or  very  soon  after  the  fall ;  the  declarations  to  his  son,  before 
he  returned  to  his  bed-room;  those  to  his  wife  upon  his  reaching  it. 
...  It  is  not  easy  to  distinguish  [the  case  of  Com.  v.  Pike,  3  Cush. 
181]  and  that  of  The  King  v.  Foster,  in  principle,  from  the  case  before 
us,  as  regards  the  point  under  consideration.  In  Aveson  v.  Kinnaird, 
it  was  said  by  Lord  Ellenborough  that  the  declarations  were  admitted 
in  the  case  in  Skinner,  because  they  were  a  part  of  the  res  gestce.  To 
bring  such  declarations  within  the  principle,  generally,  they  must  be 
contemporaneous  with  the  main  fact  to  which  they  relate.  But  this  rule 
is,  by  no  means,  of  universal  application.  .  .  .  Here  the  principal  fact 
is  the  bodily  injury.  The  res  gestce  are  statements  of  the  cause  made 
by  the  assured  almost  contemporaneously  with  its  occurrence  and  those 
relating  to  the  consequences  made  while  the  latter  subsisted  and  were 
in  progress.  .  .  .  Rightly  guarded  in  its  practical  application,  there  is 
no  principle  in  the  law  of  evidence  more  safe  in  its  results.  ...  In  the 
ordinary  concerns  of  life,  no  one  would  doubt  the  truth  of  these  declara- 
tions, or  hesitate  to  regard  them,  uncontradicted,  as  conclusive.  Their 
probative  force  would  not  be  questioned."^ 

I — Lacombe,    J.,    in    U.    S.    v.    King,    34  are    satisfied    that    it    was   made    at    a    time 

Fed.     R.     314     (1888),     charging    the    jury:  when    it    was    forced    out    as    the    utterance 

"There    is    a    principle    in    the    law    of    evi-  of   a   truth,    forced   out  against   his    will   or 

dence   which  is  known  as  'res  gestae';  that  without   his    will,    and   at   a   period   of   time 

is,    the   declarations   of   an   individual   made  so    closely    connected    with    the    transaction 

at  the  moment  of  a  particular  occurrence,  that    there    has    beeri    no    opportunity    for 

when    the   circumstances   are   such    that    we  subsequent    reflection    or    determination    as 

may    assume    that    his    mind    is    controlled  to  what  it  might  or  might  not  be  wise  for 

by  the  event,  may  be  received  in  evidence,  him   to   say. 

because    they    are    supposed    to    be    expres-  Bleckley,  C.  J.,  in  Travelers'  Ins.  Co.  v. 

sions    involuntarily    forced    out    of    him    by  Shepfard,    85    Ga.    751,    776,    12    S.    E.    18 

the     particular     event,     and    thus    have    an  (1890):    "There  must  be  no   fair  opportun- 

element    of   truthfulness    they   might    other-  ity    for    the    will    of    the    speaker    to    mould 

wise    not    have.  .  .  .   But    you    are    not    to  or   modify   them.      His    will    must    have    be- 

give  any  more  weight  to  a  declaration  thus  come  and  remained  dormant,  so  far  as  any 

made,    or    any    weight    at    all,    unless    you  deliberation  in  concocting  matter  for  speech 


No.  360. 


12.      SPONTANEOUS   EXCLAMATIONS. 


343 


(C)       THE  HEARSAY  RULE  NOT  APPLICABLE.* 

MILNE  &  SEVILLE  v.  LEISLER  (1862). 

y  H.&  N.  /86. 

Trover  for  3000  pieces  of  calico,  shirtings,  &c.  Pleas  (inter  alia), 
Not  guilty,  and  that  the  goods  were  not  the  plaintiffs'.  Issues  thereon. 
The  plaintiffs,  Messrs.  Milne  and  Seville,  were  cotton  spinners 
**""  at  Oldham,  and  the  defendant  was  a  shipping  merchant  carrying 
on  business  at  Manchester.  According  to  the  statement  of  the  plaintiff's 
witnesses,  on  the  i6th  May,  1861,  Francis  Atkin,  who  carried  on  busi- 
ness at  Manchester  under  the  name  of  Atkin  and  Company,  went  to  the 
warehouse  of  the  plaintiffs  at  Manchester  to  purchase  some  "shirtings." 
The  plaintiff's  salesman  remarked  that  he  was  a  stranger,  whereupon 
Atkin  said,  "I  am  not  buying  for  myself.  I  will  give  you  the  house,  if 
you  prefer  it,  that  I  am  buying  for,  and  references  respecting  myself." 


or  selecting  words  is  concerned.  More- 
over, his  speech,  besides  being  in  the  pres- 
ent time  of  the  transaction,  must  be  in 
the  presence  of  it  in  respect  to  space.  He 
must  be  on  or  near  the  scene  of  action 
or  of  some  material  part  of  the  action. 
His  declarations  must  be  the  utterance  of 
human  nature,  of  the  genus  homo,  rather 
than  of  the  individual.  Only  an  oath  can 
guarantee  individual  veracity.  But  spon- 
taneous impulse  may  be  sufficient  sanction 
for  the  speech  of  man  as  such, — man,  dis- 
tinguished from  this  or  that  particular 
man.  True,  the  verbal  deliverance  in  each 
instance  is  that  of  an  individual  person. 
But  if  the  state  of  his  mind  be  such  that 
his  individuality  is  for  the  time  being  sup- 
pressed and  silenced,  so  that  he  utters 
the  voice  of  humanity  rather  than  of  him- 
self, what  he  says  is  regarded  by  the  law 
as   in   some   degree  trustworthy." 

Shelby,  in  Jack  v.  Mutual  R.  F.  Life 
Ass'ii,  51  C.  C.  A.  36,  113  Fed.  49  (1902), 
admitting  statements  made  by  an  insured 
after  being  poisoned  and  just  before  his 
death:  "While  it  is  said  that  the  declara- 
tions must  be  contemporaneous  with  the 
main  fact,  no  rule  can  be  formulated  by 
which  to  determine  how  near,  in  point  of 
time,  they  must  be.  No  two  rases  are 
exactly  alike,  and  the  determination  of  this 
question  is  always  inseparable  from  the 
circumstances  of  the  case  at  bar.  The 
transaction  in  question  may  be  such  that 
the  res  gestae  would  extend  over  a  day, 
or  a  week,   or  a  month." 

Compare  the  authorities  cited  in  W.,  § 
I7S0. 


2 — Professor  James  Bradley  Thayer,  in 
XV  Amer.  Law.  Rev.  5,  81  (1881): 
"If  it  be  true,  as  it  seems  to  be,  that  the 
phrase,  [res  gestae]  first  came  into  use  in 
evidence  near  the  end  of  the  last  century, 
one  would  like  to  know  what  started  the 
use  of  it  just  then.  That  is  matter  for 
conjecture  rather  than  opinion.  It  would 
seem  probable  that  it  was  called  into  use 
mainly  on  account  of  its  'convenient  ob- 
scurity.' .  .  ,  The  law  of  hearsay  at  that 
time  was  quite  unsettled;  lawyers  and 
judges  seem  to  have  caught  at  the  term 
res  gesta, —  .  .  .  which  was  a  foreign  term, 
a  litle  vague  in  its  application,  and  yet  in 
some  applications  of  it  precise, — tliey  seem 
to  have  caught  at  this  expression  as  one 
that  gave  them  relief  at  a  pinch.  They 
could  not,  in  the  stress  of  business,  stop 
to  analyze  minutely;  this  valuable  phrase 
did  for  them  what  the  limbo  of  the  theolo- 
gians did  for  them,  what  a  'catch-all'  does 
for  a  busy  housekeeper  or  an  untidy  one 
— some  things  belonged  there,  other  things 
might  for  purposes  of  present  convenience 
be  put  there.  We  have  seen  that  the 
singular  form  of  phrase  soon  began  to 
give  place  to  the  plural;  this  made  it  con- 
siderably more  convenient;  whatever  multi- 
plied its  ambiguity,  multiplied  its  capacity; 
it  was  a  larger  'catch-all.*  To  be  sure, 
this  was  a  dangerous  way  of  finding  relief, 
and  judges,  text-writers,  and  students  have 
found  themselves  sadly  embarrassed  by  the 
growing  and  intolerable  vagueness  of  the 
expression." 


344  HEARSAY  rule:  (c)  limitations.  No.  360. 

Atkin  subsequently  wrote  the  following  order,  having  previously  given 
the  names  of  the  three  persons  mentioned  in  it  as  referees.  The  words 
in  italics  were  afterwards  inserted  by  the  plaintiff  Seville : — "Order  from 
F.  Atkin  and  Company,  15,  New  Cannon  Street  [for  Grant,  Murdoch 
and  Company,  Liverpool],  to  Messrs.  Milne,  Seville  and  Company,  2000 
pieces  [describing  them  by  trade  marks],  2000  other  [describing  them], 
and  3000  [describing  them],  gold.  To  be  completed  in  4  to  6  weeks.  F. 
Atkin  and  Company,  2  per  cent.  14  days,  or  ^  per  cent.  30  days.  F. 
Burton,  of  James  Burton  and  Son ;  James  Leach  and  Company ;  Lord, 
of  E.  L.  Gault,  29,  Booth  St.  [/.  C.  Bond,  of  J.  H.  Littlcdale,  Liver- 
pool']" Atkin  wanted  to  have  the  goods  immediately,  but  the  salesman 
refused  until  he  had  consulted  his  principals.  On  the  following  day,  the 
plaintiff,  Seville,  was  informed  by  the  salesman  of  what  had  taken  place 
between  him  and  Atkin;  whereupon  Seville  made  personal  inquiries  of 
the  above-named  referees,  and  according  to  his  evidence  the  result  was 
that  he  "determined  not  to  trust  Atkin  with  the  goods."  A  message 
was  then  sent  to  Atkin  to  meet  the  plaintiffs  on  the  exchange  in  the 
afternoon.  The  salesman  first  met  Atkin  there,  and  told  him  that  Seville 
required  to  have  the  name  of  the  person  for  whom  he  was  buying  the 
goods.  Atkin  said  he  would  give  him  the  name,  and  handed  to  him  an 
envelope  with  "Grant,  Murdoch  and  Co.,"  written  upon  it.  The  plain- 
tiff, Seville,  then  came,  and  the  salesman  gave  him  the  envelope  and 
introduced  Atkin  to  him.  Seville  then  said  aloud,  "Grant,  Murdoch  and 
Company;  are  those  the  parties?"  Atkin  replied  "Yes."  Seville  then 
observed,  "This  firm  are  strangers  to  me,  and  before  I  can  trust  them 
with  the  goods  I  must  have  some  reference,  and  know  something  about 
them."  Atkin  said  he  could  give  a  respectable  reference,  and  he  gave 
the  name  "J.  C.  Bond,  of  J.  H.  Littledale  and  Company."  Seville  then 
wrote  the  name  in  pencil  on  the  envelope,  and  said  he  would  write  to 
Liverpool  and  make  the  necessary  inquiries,  and  if  the  answer  was  satis- 
factory the  goods  would  be  delivered.  Atkin  pressed  to  have  some  of 
the  goods  delivered  immediately,  to  enable  him  to  get  them  from  the 
bleachers  before  the  Whitsuntide  holidays,  and  he  said  that  he  would 
send  the  money  before  the  28th  of  that  month,  and  that  the  references 
would  be  all  right.  Seville  thereupon  consented  to  let  Atkin  have  a 
portion  of  the  goods;  and,  on  his  return  to  the  warehouse,  Seville  in- 
serted in  the  above  order  the  words  in  italics.  2500  pieces  of  the  shirt- 
ings were  delivered  to  Atkin  the  same  evening,  and  500  the  next  morning. 
An  invoice  was  sent  with  them  headed  "Grant,  Murdoch  and  Company, 
per  F.  Atkin." 

In  the  course  of  Seville's  examination,  the  plaintiff's  counsel  pro- 
posed to  give  in  evidence  a  letter  which  Seville  said  he  wrote  on  the 
17th  after  his  return  to  the  warehouse,  to  Messrs.  Francis  and  Corner, 
the  plaintiffs'  brokers  in  Liverpool.  The  defendant's  counsel  objected 
that  the  letter  was  not  admissible  in  evidence,  but  Wilde,  B.,  overruled 
the  obiection  and  received  it.     The  letter  was  as  follows: — 


No.  360.  VERBAL  acts;  res  gestae.  345 

"Manchester,  17th  May,  1561. 
"Gentlemen, 

"We  wish  you  to  call  at  J.  H.  Littledale  and  Company's,  and  see 
J.  C.  Bond,  and  inquire  as  to  the  trustworthiness  of  Messrs.  Grant,  Mur- 
doch and  Company,  of  your  town;  and  also  of  F.  Atkin  and  Company, 
of  this  city,  who  is  making  a  rather  large  purchase  of  goods  for  the  above 
party,  and  who  refers  us  to  Mr.  Bond.  Write  by  return  directed  to  the 
Mill.  "Yours,  &c., 

"Messrs.  Francis  and  Co."  "J.  Seville." 

It  subsequently  appeared  that  Grant,  Murdoch  and  Company  had  no 
knowledge  whatever  of  the  transaction,  and  that  Atkin  sent  the  goods  to 
the  defendant,  who  had  previously  undertaken  to  consign  them  to  Singa- 
pore on  Atkin's  account,  and  had  advanced  him  857/.  upon  them.  At- 
kins was  afterwards  declared  bankrupt. 

The  case  on  the  part  of  the  defendant  was  that  he  had  bona  fide 
advanced  the  money  to  Atkin,  who  had  purchased  the  goods  on  his  own 
account :  that  Atkin  had  given  the  name  of  Grant,  Murdoch  and  Com- 
pany as  the  shippers  of  the  goods. 

Martin,  B.,  left  it  to  the  jury  to  say  whether  they  believed  the  wit- 
nesses on  the  part  of  the  plaintiffs  or  the  defendant.  If  the  plaintiffs 
intended  to  sell  the  goods  to  Grant,  Murdoch  and  Company,  they  were 
entitled  to  recover,  because  Grant,  Murdoch  and  Company  never  did  in 
fact  buy  them,  so  that  there  was  no  contract  or  sale  at  all.  If,  on  the 
other  hand  Atkin  bought  the  goods  on  his  own  account,  and  they  were 
sold  by  the  plaintiffs  to  him,  though  the  sale  might  have  been  avoided 
on  the  ground  of  fraud,  yet  as  the  plaintiffs  had  not  elected  to  do  so, 
Atkin,  or  any  person  to  whom  he  sold  or  pledged  the  goods,  would 
have  a  valid  title  to  them,  and  the  defendant  would  be  entitled  to  the 
verdict.  The  learned  Judge  read  the  letter  of  the  17th  of  May,  and 
observed  that  if  it  was  a  genuine  letter  written  at  the  time  stated,  it 
seemed  to  establish  the  plaintiff's  case.  The  jury  having  found  a  ver- 
dict for  the  plaintiffs. 

Edward  James,  in  last  Michelmas  Term,  obtained  a  rule  nisi  for  a 
new  trial,  on  the  ground  of  the  improper  reception  in  evidence  of  the 
letter  of  the  17th  of  May. 

Edward  James  and  Asf^land,  in  support  of  the  rule: — "First,  the  letter 
was  not  admissible  in  evidence.  The  plaintiffs  were  bound  to  prove  that 
the  goods  were  sold  on  the  credit  of  Grant,  Murdoch  and  Company. 
Now,  if  the  reasoning  on  the  other  side  be  correct,  the  plaintiff's  might 
prove  that  fact  by  the  production  of  their  books  in  which  they  had  deb- 
ited Grant,  Murdoch  and  Company  with  the  amount  of  the  goods ;  for  the 
entry  would  be  an  act  done  at  the  time  of  the  sale  and  would  show  an 
impression  on  the  mind  of  the  plaintiffs  that  the  goods  were  purchased 
for  Grant,  Murdoch  and  Company.  But  their  books  would  clearly  not 
be  admissible  for  that  purpose.  (Wilde,  B.  :  "Suppose  a  witness  said, 
'I  saw  one  of  the  plaintiffs  when  he  was  leaving  the  exchange,  and  he 


346 


HEARSAY    rule:    (c)    LIMITATIONS. 


No.  360. 


told  me  that  they  had  just  sold  2000/.  worth  of  goods  to  Grant,  Murdoch 
and  Company,  would  that  be  admissible?")  It  would  be  no  more  admis- 
sible than  if  the  plaintiffs  had  publicly  proclaimed  upon  the  exchange 
that  they  had  sold  certain  goods  to  a  certain  person.  (Pollock,  C  .B.: 
"Suppose  the  plaintiffs  had  gone  immediately  after  the  sale  to  their  ware- 
house, and  ordered  the  removal  of  the  goods  to  another  part  of  it,  with 
the  view  of  being  delivered  to  Grant,  Murdoch  and  Company,  would  not 
evidence  of  that  fact  be  admissible  ?")  As  against  the  plaintiffs  any  dec- 
laration made  or  act  done  at  the  time  of  the  sale  would  be  evidence,  but 
they  cannot  by  their  conduct,  make  evidence  in  their  favour.  (Wilde, 
B. :  "Suppose  one  of  the  plaintiffs  had  said,  'I  know  we  sold  the  goods 
to  Grant,  Murdoch  and  Company,  because  at  the  time  of  the  sale  I 
told  our  warehouseman  to  mark  the  goods  for  them.'  ")  That  would  not 
be  evidence  for  the  plaintiffs.  This  letter  was  no  part  of  the  res  gestae." 
Pollock,  C.  B.  :  "If  a  man  on  leaving  his  counting-house  said  to  his 
servant  T  have  just  sold  so  and  so,'  that  would  not  be  evidence  of  the 
sale.  Here,  however,  .  .  .  this  letter,  being  part  of  the  transaction  of  a 
reference  made  in  pursuance  of  the  direction  of  the  party  purchasing,  was 
admissible".  Wilde,  B.:  "It  seems  to  me  that  the  case  is  the  same  as 
if  the  plaintiff,  Seville,  had  himself  made  the  inquiry,  and  that  it  makes 
no  difference  whether  he  directed  another  person  to  inquire  or  himself 
wrote  to  Bond.  Then  would  the  fact  that  the  plaintiff,  Seville,  wrote  to 
Bond,  and  received  a  certain  character,  be  admissible  ?  I  think  it  would, 
as  part  of  the  res  gestse.  I  do  not  think  its  admissibility  could  be  sup- 
ported on  the  ground  suggested  by  the  plaintiff's  counsel,  viz.,  that  it 
was  something  which  the  plaintiffs  did  when  they  had  no  interest  to 
deceive.  ...  If  the  evidence  were  admissible  on  that  ground,  every- 
thing a  man  said  on  the  day  when  he  made  a  bargain,  and  still  more, 
everything  he  did,  would  be  admissible.  It  seems  to  me  that  would  be 
very  dangerous  ground.  .  .  .  The  real  ground  is  that  this  was  an  inquiry 
made  by  the  direction  of  the  plaintiff  in  pursuance  of  an  authority  from 
Atkin  [the  defendant's  agent],  and  therefore  was  part  of  the  res  gestcB."^ 


W.  D.  Evans,  Notes  to   Pothier   on   Obligations,   II,   242    (1806): 
"Speech  is  a  mode  of  action;  .  .  .  and  I  conceive  that  the  distinction 
between  the  cases  in  which  the  immediate  action  of  speech  fur- 
**  nishes  a  material  indication  with  respect  to  the  object  of  the  in- 

quiry, and  those  in  which  it  is  a  mere  act  of  narration,  will  in  most  cases 


3 — Mr.  Gaston  (afterwards  Judge),  in 
Cherry  v.  Slade,  2  Hawks  400,  404  (1823), 
arguing  pro  querente  against  declarations 
of  residence:  "It  is  sometimes  said  that 
there  is  an  exception  when  words  are  the 
res  gestae  or  part  of  the  res  gestae.  But 
this  seems  not  to  be  accurate.  The  words 
are  then  received,  not  as  evidence  of  the 
truth  of  what  was  declared,  but  because 
the    speaking   of   the    words    is   the   fact,    or 


part  of  the  fact,  to  be  investigated.  There 
may  be  a  controversy  whether  A.  B.  at  a 
certain  time  spoke  certain  words,  and  those 
who  heard  him  are  of  course  receiveu  to 
prove  the  fact.  'ihe  words  spoken  con- 
currently with  an  act  done  are  often  a 
part  of  the  act,  and  give  it  a  precise 
and  peculiar  character,  and  therefore  must 
be  testified, — not  to  show  that  the  words 
spoken    are    true,    but    to    show    that    ihey 


No.  363.  VERBAL  ACTS  ;  RES  GESTAE.  347 

furnish  the  proper  principle.  .  .  .  Many  acts  are  in  themselves  of  an 
equivocal  nature,  and  the  effect  of  them  depends  upon  the  intention  or 
disposition  from  which  they  proceed,  which  is  in  general  best  determined 
by  the  expressions  accompanying  them.  Wherever,  therefore,  the  de- 
meanor of  a  person  at  a  given  time  becomes  the  object  of  inquiry,  his 
expressions,  as  constituting  a  part  of  that  demeanor,  and  as  indicating 
his  present  intent  and  disposition,  cannot  properly  be  rejected  in  evi- 
dence as  irrelevant.  .  .  .  This  proposition  [that  a  declaration  accompan- 
ied by  an  act  is  admissible]  is  only  correct  where  the  expressions  are 
demonstrative  of  the  nature  of  the  act  itself." 


Jeremy  Bentham,  Principles  of  Morals  and  Legislation  (1780),  c. 
XVIII,  par.  XXXV,  note:  "What  is  meant  by  payment  is  always  an  act 
of  investitive  power,  as  above  explained, — an  expression  of  an  act 
of  the  will,  and  not  a  physical  act;  it  is  an  act  exercised  with 
relation  indeed  to  the  thing  said  to  be  paid,  but  not  in  a  physical  sense 
exercised  upon  it.  A  man  who  owes  you  ten  pounds  takes  up  a  handful 
of  silver  to  that  amount  and  lays  it  down  at  a  table  on  which  you  are 
sitting.  If  then,  by  words  or  gestures  or  any  means  whatever,  address- 
ing himself  to  you,  he  intimates  it  to  be  his  will  that  you  should  take  up 
the  money  and  do  with  it  as  you  please,  he  is  said  to  have  paid  you.  But 
if  the  case  was  that  he  laid  it  down,  not  for  that  purpose  but  for  some 
other — for  instance,  to  count  and  examine  it,  meaning  to  take  it  up  again 
himself  or  leave  it  for  somebody  else — he  has  not  paid  you.  Yet  the 
physical  acts  exercised  upon  the  pieces  of  money  in  question  are  in  both 
cases  the  same.  Till  he  does  express  a  will  to  that  purport,  .  ,  .  [there 
is  no  payment]." 


WEBB  V.  RICHARDSON   (1869). 

42  Vt.  465,  472. 

Trespass  q.  c.  f.,  the  issue  being  as  to  the  title  to  a  certain  lot  64, 
except  the  north  20  acres, 

Peck,  J. :  "The  Court  properly  admitted  proof  of  the  declara- 
tions of  Reuben  Hawkins,  made  while  working  on  lot  sixty-four 
to  the  effect  that  he  called  it  his  'possession  lot,'  and  that  he  was  claiming 
and  getting  it  by  possession.  But  the  Court  was  in  error  in  excluding 
'evidence  to  show  that  at  other  times,  prior  to  1822,  the  said  Hawkins 
said  the  same  things  when  not  on  lot  sixty-four,  but  at  his  house  and  in 
sight  of  it,  and  pointing  it  out.'  To  constitute  a  continuous  possession  it 
is  not  necessary  that  the  occupant  should  be  actually  upon  the  premises 
continually.     The  mere  fact  that  time  intervenes  between  successive  acts 

were   in    fact   spoken.      For   example:      Did  representation   in   the  course   of  a  bargain? 

A  commit  an   assault   on    B?    What   he  said  If   so,    that    representation    was    an    ingredi- 

when    he    laid    his    hands    on    B    will    show  ent    in    the   bargain." 

whether   it   was   an    angry   or    friendly   act.  Compare   the    authorities   cited   in   W.,   § 

Did  the  agent  of  defendant  make  a  certain  1770. 


348 


HEARSAY    rule:    (c)    LIMITATIONS. 


No.  363. 


of  occupancy  does  not  necessarily  destroy  the  continuity  of  the  poses- 
sion.  The  kind  and  frequency  of  the  acts  of  occupancy,  necessary  to 
constitute  a  continuous  possession,  depend  somewhat  on  the  condition  of 
the  property,  and  the  uses  toi  which  it  is  adapted  in  reference  to  the  cir- 
cumstances and  situation  of  the  possessor,  and  partly  on  his  intention. 
If,  in  the  intermediate  time  between  the  different  acts  of  occupancy,  there 
is  no  existing  intention  to  continue  the  possession,  or  to  return  to  the 
enjoyment  of  the  premises,  the  possession,  if  it  has  not  ripened  into  a 
title,  terminates,  and  cannot  afterward  be  connected  with  a  subsequent 
occupation  so  as  to  be  made  available  toward  gaining  title ;  while  such 
continual  intention  might,  and  generally  would,  preserve  the  possession 
unbroken.  This  principle  is  tersely  stated  in  the  civil  law,  thus:  a  man 
may  retain  possession  by  intention  alone,  yet  this  is  not  sufficient  for  the 
acquisition  of  possession.  ...  If  the  admissibility  of  such  declarations  Is 
put  the  ground  of  declarations  constituting  part  of  the  res  gestcs,  they 
are  admissible,  as  the  res  gestcs  is  not  confined  to  a  particular  act  of 
occupancy  done  upon  the  premises,  but  is  the  continual  possession,  which 
includes  the  successive  acts  of  occupancy.  Since  a  party  who  has  once 
commenced  a  possession  of  land,  by  actual  entry  and  acts  of  occupancy 
upon  it,  may  continue  to  possess  it  during  intervals  when  not  upon  it,  he 
may  claim  it  during  such  intervals  as  well  as  when  actually  upon  the 
land  doing  acts  of  possession;  and  the  fact  of  his  making  such  claim  is 
provable  by  evidence  of  his  declarations  made  at  the  time,  in  the  same 
manner  and  to  the  same  effect  as  if  made  while  on  the  land,  doing  an  act 
of  possession.  Such  declarations  to  show  the  adverse  character  of  the 
possession  are  quite  as  much  in  the  nature  of  facts  as  in  the  nature  of 
a  medium  of  proof."* 


TILTON  V.  BEECHER  (1875). 

Abbott's  Rep.   (N.  Y.)  I,  800. 

Action  for  criminal  conversation.  With  reference  to  the  plaintiff's 
having  made  inconsistent  statements  or  admissions  of  the  falsity 
of  his  claim,  by  stifling  the  matter  when  first  publicly  in- 
vestigated, it  was  desired  to  show  the  true  significance  of  his 
conduct  in  handing  to  his  agent,  Mr.  Moulton,  a  statement  to  be  given 
by  the  agent  to  the  investigating  committee,  appointed  by  the  church  to 
which  the  parties  belonged.  Mr.  Fullerton,  for  the  plaintiff,  to  the  wit- 
ness, Mr.  Moulton :  "What  did  he  [the  plaintiff]  say  in  regard  to  it  at 


864 


4 — Manning,  J.,  in  Cooper  v.  State,  63 
Ala.  80  (1879):  "What  a  person  says  that 
is  explanatory  of  an  equivocal  or  ambigu- 
ous act  which  he  is  then  doing  or  situa- 
tion which  he  is  then  occupying — as  that 
of  a  person  in  possession  of  property — 
may  be  proved  as  res  gestae,  a  part  of 
the  thing  then  going  on,  to  elucidate  and 
define  the  character  of  such  equivocal  act 
or    situation.      Words    so    connected    with 


and  illustrative  of  it  are  considered  as  ap- 
pertaining to  the  act  or  situation,  and,  like 
expression  on  the  human  face,  as  indicat- 
ing character, — the  character  of  the  act  or 
situation  which  they  are  related  to  and 
are  blended  with.  This  is  the  central  idea 
of  the  doctrine  respecting  what  is  called 
res  gestae." 

Compare  the  authorities  cited  in   W.,   §§ 
1778,   1779- 


No.  3G5.  VERBAL  ACTS  ;  RES  GESTAE.  349 

the  time  he  gave  it  to  you?  [Objected  to.]  ...  If  I  hand  your  Honor 
a  certain  paper,  with  a  request  to  do  a  certain  thing  with  it,  for  a  certain 
purpose,  is  not  that  direction  evidence?"  Mr.  Beach,  for  the  plaintiff: 
"Let  me  put  an  iUustration  to  your  Honor.  .  .  .  Suppose  Mr.  Evarts 
comes  to  me  and  deUvers  a  blow  in  my  face,  and  at  the  instant  of  deliv- 
ering that  blow  he  accuses  me  of  having  injured  him  in  some  form;  he 
gives  the  motives  and  the  purpose  with  which  he  delivers  that  act ;  can 
that  act  be  proved  against  Mr.  Evarts,  without  permitting  him  to  give 
the  declaration  accompanying  the  act  ?"  Mr.  Evarts,  for  the  defendant : 
"That  is  a  spoken  act.  That  is  not  hearsay.  It  is  a  part  of  the  blow ; 
it  is  a  spoken  act.  Some  confusion,  no  doubt  arises  in  lawyers'  discus- 
sions about  hearsay  evidence  that  comes  by  word  of  mouth  in  connection 
with  that  act;  but  your  Honor  is  familiar  with  the  distinction  that  our 
learned  friend  has  given.  .  .  .  Now  if  he  [Mr.  Tilton]  gave  instructions 
to  take  that  paper  and  lay  it  before  the  council,  or  carry  it  to  Mr. 
Beecher,  that  is  a  part  of  the  act  of  delivering  it  to  him.  But  this  ques- 
tion is  large  enough  to  draw  out,  and  so  I  suppose  is  intended  to  draw 
out.  a  larger  line  of  hearsay  evidence,  to  wit,  conversations  between  Mr. 
Moulton  and  Mr.  Tilton,  with  which  Mr.  Beecher  cannot  be  affected" ; 
Judge  Neilson  :  "That  distinction  must  be  observed."'' 


FABRIGAS  V.  MOSTYN  (1773). 

20  Hozv.  St.  Tr.  757. 

Action  for  false  imprisonment  by  the  Governor  of  Minorca;  defence, 
that  the  plaintiff  excited  sedition  and  riot.  The  reasonableness  of  the 
governor's  apprehension  of  riot  came  into  issue ;  the  aid-de-camp 
**"*  to  the  governor  testified  that  a  native  magistrate  came  to  him  to 
report  that  "Fabrigas  said  he  would  come  with  a  mob  .  .  .  and  they 
would  see  better  days  tomorrow".  Mr.  Peckham,  for  the  defence :  "You 
need  not  mention  what  the  mustastaph  told  you;  that  is  not  regular". 
Mr.  J.  Gould  :  "I  should  be  glad  to  know  how  the  Governor  can  be  ap- 
prized of  any  danger  unless  it  is  by  one  or  other  of  his  officers  informing 
him  there  is  likely  to  be  such  and  such  a  thing  happen?"   Mr.  Peckham: 

5 — Coltman,  J.,  in   Wright  v.   Tatham,   7  were    intended    to   explain,    and   so   to   har- 

A.  &  E.  361    (1837):     "Where  an  act  done  monize    with    them    as    obviously   to   consti- 

is    evidence    per    se,    a    declaration    accom-  tute   one    transaction." 

panying    that    act    may    well    be    evidence,  Holmes,    C.   J.,   in   Com.    v.    Chance,    174 

if    it    reflects    light    upon    or    qualifies    the  Mass.  245,  250,  54  N.  E.  551   (1899);  mur- 

act.      But    I    am    not    aware    of    any    case  der    of    R.;    the    fact    that    one    Mrs.    O'B. 

where    the   act    done    is    in    its    own    nature  during    a    quarrel    with    her    husband    took 

irrelevant   to  the  issue   and   where   the   dec-  two    bullets    from    a   closet    and    said,    "The 

laration    per    se    is    inadmissible,    in    which  third    one    killed    R.,"    was   excluded:    "The 

it  has  been  held  that  the  union  of  the  two  act    of    taking    out    the    bullets    needed    no 

has   rendered   them    admissible."  explanation;    it    is    not    the    law    that    any 

Hosmer,    C.    J.,    in    Enos    v.     Tuttle,    3  and   all   conversation    which    happens   to   be 

Conn.     230     (1820),    referring    to    declara-  going    on    at    the    time    of   an    act    can    be 

tions   as   to  the   purpose   of  giving  a   note:  proved   if  the   act  can   be  proved." 

"[They    were]     well    calculated    to    unfold  Compare   the  authorities  cited   in    \V.,   §§ 

the    nature    and    duality    of    the    facts    they  1773,    1775. 


350 


HEARSAY    rule:    (c)    LIMITATIONS. 


No.  365. 


"Hearsay  is  no  evidence  .  .  ."  Mr.  J.  Gould:  "We  do  not  take  it  for 
granted  that  it  is  really  so;  only  that  this  gentleman,  hearing  of  this, 
tells  the  Governor".  Mr.  Lee,  for  the  defence:  "It  is  no  evidence  of  the 
fact;  if  you  mean  it  only  as  a  report,  we  do  not  object." 


PARNELL  COMMISSION'S  PROCEEDINGS  (1888). 

nth,  13th,  17th,  18th  days,  Times'  Rep.  p.  103,  i/p. 

The  Irish  Land  League  and  its  leaders  being  charged  v^^ith  a  con- 
spiracy to  encourage  outrage  and  agrarian  violence,  and  the  general  state 
of  the  country  as  to  disquiet  and  apprehension  being  a  part  of  the 
*  issue,  it  was  conceded  that  the  fact  of  repeated  complaints  being 

made  to  the  police  and  to  employers  by  tenants  and  others  was  provable ; 
in  this  process,  testimony  was  proposed  of  employers  as  to  reports  made 
to  them  by  herdsmen  and  others  of  mjuries  to  cattle,  etc.,  the  reports 
being  offered  in  verbal  detail;  to  this  Sir  Charles  Russell  objected,  for 
Mr.  Parnell,  as  hearsay;  the  Attorney-General,  in  reply:  "I  would  re- 
spectfully submit  that  my  learned  friend  has  forgotten  the  rule  that  the 
res  gestce  may  be  proved,  and  if  in  the  course  of  the  proof  of  the  facts 
it  is  shown  that  servants  have  made  inquiries  with  regard  to  them  and 
reported  the  result,  those  reports  form  part  of  the  res  gestce  for  the  pur- 
pose of  ascertaining  under  what  circumstances  the  occurrences  took 
place."  Sir  C.  Russell:  "As  regards  the  res  gestce,  what  is  the  resf  That 
certain  cattle  were  injured.  How  can  it  be  part  of  the  res  gestce  that  a 
man  who  was  present,  and  saw  the  injury,  afterwards  made  a  statement 
to  a  third  person  of  what  he  had  seen  ?  To'  say  that  this  is  part  of  the 
res  gestce  is  an  entire  misapprehension  of  the  rule."  ..  .  .  President  Han- 
NEN :  "The  fact  that  a  particular  report  had  been  made  by  a  person  in 
discharge  of  his  duty  was  admissible  in  evidence,  not  that  the  contents 
of  that  report  should  be  taken  as  evidence  of  the  facts  to  which  it  re- 
lated. If  the  matter  rested  there,  without  there  being  any  other  evidence 
of  the  facts  except  that  contained  in  the  report,  that  could  not  be  re- 
garded as  evidence  of  the  facts  by  the  Court.  .  .  .  There  is  a  broad  dis- 
tinction between  a  thing  being  merely  admissible  in  evidence  and  its 
being  taken  as  proof  of  the  facts  alleged."^ 


6 — Doster,  C.  J.,  in  State  Bank  v. 
Hutchinson,  62  Kan.  9,  61  Pac.  443  (1900); 
action  on  a  homestead  mortgage;  defence, 
duress  of  the  wife  by  threats  to  prosecute 
the  husband,  communicated  by  the  latter 
to  the  former:  "A  daughter  of  the  Hutch- 
insons  testified  that  she  overheard  the  con- 
versation between  her  father  and  mother, 
in  which  the  former  disclosed  to  the  latter 
the  threats  which  Morris  had  made.  Coun- 
sel for  plaintiff  in  error  also  contend 
pgainst  the  admissibility  of  this  testimony, 
upon  the  ground  that  it  was  hearsay  in 
character.  .  .  .  Neither  of  these  contentions 
is    sound.       There    were    three    substantive 


litigated  questions  in  the  case — First,  were 
threats  made?  And,  if  so,  secondly,  were 
they  communicated  to  Mrs.  Hutchinson? 
And,  if  so,  thirdly,  did.  they  produce  the 
claimed  effect?  As  to  the  second  of  these 
as  well  as  the  first,  the  meritorious  ques- 
tion was,  had  a  verbal  act  been  done? 
That  is,  had  a  communication  been  made? 
That  act,  if  done,  was  not  incidental  or 
collateral  in  nature.  It  was  one  of  the 
three  principal  litigated  matters  in  the 
case,  and,  being  such,  the  performance  of 
the  act  was  provable  by  the  testimony  of 
any  one  who,  if  competent,  was  a  witness 
to    it.  The    question    was    not    whether 


No.  367.  VERBAL  ACTS  ;  RES  GESTAE.  351 

STATE  V.  FOX  (1856). 
25  N.  J.  L.  566,  602. 

Murder.  A  witness  for  the  prosecution  testified  to  meeting  the  ac- 
cused on  the  day  of  the  murder,  and  proceeded  to  fix  the  time  and  place. 
"It  was  between  twenty  and  twenty-five  minutes  past  ten  o'clock 
**"*  when  I  reached  home;  I  cannot  fix  the  time  by  any  other  way 
than  what  my  sister  said;  my  sister  remarked  that  I  had  been  very 
quick,  and  that  made  me  look  at  the  clock."  The  counsel  for  the  de- 
fendant here  objected  to  the  reception  of  the  conversation  of  the  said 
witness  with  her  said  sister  as  evidence  in  this  cause,  and  moved  the 
Court  to  overrule  the  same.  The  counsel  for  the  State  objected,  and 
the  Court  thereupon  admitted  the  said  conversation  in  evidence,  and 
refused  to  overrule  the  same.  To  the  question,  "When  was  your  attention 
first  called  to  the  fact  of  meeting  the  man  referred  to  by  you,"  the  wit- 
nessed answered :  "My  attention  was  first  called  to  the  matter  by  being 
sent  for  to  Brunswick  by  Mr.  Jenkins.  I  first  saw  it  in  the  papers ;  I 
think  it  was  the  'New  York  Daily  Times ;'  I  think  this  was  the  following 
Tuesday.  I  heard  of  it  from  a  neighbor  before  I  left  Brunswick,  but  I 
did  not  know  that  I  knew  about  the  affair.  .  .  .  What  I  saw  in  the  'Times' 
called  my  attention  to  the  fact  of  having  been  to  Brunswick  that  day, 
and  meeting  that  man,  and  I  mentioned  it."  Question:  "What  particular 
feature  in  the  affair  did  the  neighbor  call  your  attention  to  before  you 
left  New  Brunswick?"  Answer:  "She  said,  perhaps  the  man  I  met  on 
Thursday  morning  might  have  had  something  to  do  with  it."  The  coun- 
sel for  the  defendant  here  objected  to  the  reception,  as  evidence  in  this 
cause,  of  the  said  conversation  of  the  said  witness  with  the  said  neigh- 
bor, and  the  remark  of  the  said  neighbor  to  the  said  witness,  and  moved 
to  overrule  the  same.  To  which  the  counsel  for  the  State  objected.  The 
Court  thereupon  admitted  the  said  conversation  and  remark  in  evidence. 

Green,  C.  J.:  "The  evidence  was  not  offered  or  admitted  to  prove 
the  truth  of  the  facts  stated  to  the  witness,  but  merely  to  show  what  it 
was  that  called  the  attention  of  the  witness  to  a  fact  stated  by  her  or  that 
fixed  the  fact  in  her  recollection.  Whether  the  statement  of  the  third  per- 
son was  true  or  false  was  perfectly  immaterial.  The  fact  that  the  com- 
munication was  made,  and  not  its  truth  or  falsity,  was  the  only  material 

Hutchinson's    communication    to    his    wife  although   it  consists  of  the  speech   of  third 

was   truthful,   but   it   was   whether   the  com-  persons.       A     familiar     illustratioi]     of    this 

munication    had    been    in    fact   made.      The  rule  is  afforded  in  cases  of  defense  against 

rule    is    general    that,    where    a    substantive  assaults.      It    is   always   admissible    in    such 

litigated    fact    is    the    speech    of    a    person,  case    to    show    the    making    of    threats    by 

one   who   heard    the    utterance    is   admitted  those  who  overheard   them,   and  their  com- 

to   testify   to   it,    and   the   testimony   so    re-  munication    to    the    defendant,      upon     the 

ceived   is  not  hearsay.  ...  It  is  a  general  strength    of   which    he   armed    himself,    and 

rule    in    the    law    of    evidence    that,    when  resisted   the   assault   of   his   antagonist." 
the  inducing  cause  of  the  action   of  a  per-  Compare   the   authorities   cited    in    W.,    § 

son   is   the  subject   of  inquiry,  the  informa-  1789. 
tion    upon    which    he   acted    may    be   stated, 


352 


HEARSAY    rule:    (c)    LIMITATIONS. 


No.  367. 


point.     The  conversations  were  not  hearsay,  within  the  proper  meaning 
of  the  term."' 


(D) 


HEARSAY  RULE  AS  APPLIED  TO  COURT  OFFI- 
CERS. 


ALLEN  V.  ROSTAIN  (1824). 
//  S.  &  R.  362,  3/4. 
Issue  as  to  a  partnership.     The  general  reputation  of  the  defendants 
as  partners  was  declared  admissible  by  the  trial  Court ;  though  no  testi- 
mony to  that  effect  was  in  fact  introduced.     On  appeal,  the  ruling 
was  held  erroneous. 
TiLGHMAN,  C.  J.:  "But  the  defendants'  counsel  contend,  that  there 
probably  was  an  injury  sustained  in  this  instance,  because,  the  jury  hav- 
ing heard  the  Court's  opinion,  that  general  reputation  was  evidence,  might 
have  been  influenced  by  their  own  knowledge  of  a  general  reputation  in 
Pittsburgh,  that  the  defendants  were  engaged  in  a  general  partnership. 
But  we  must  not  suppose  that  the  jury  acted  illegally.    They  were  sworn 
to  determine  according  to  the  evidence;  that  is,  the  evidence  as  given 
upon  oath,  in  open  court.     Although  it  was  once  held  that  a  juror  might 
determine  upon  facts  within  his  own  knowledge,  not  proved  by  his  oath,^ 
yet  that  opinion  has  long  been  reprobated,  in  consequence  of  the  confu- 
sion and  injustice  that  would  result  from  it.    The  parties  have  a  right  to 
hear  the  evidence,  that  they  may  have  an  opportunity  of  cross-examining 
the  witness,  and  contradicting  him,  if  necessary,  by  other  evidence."® 


ANDERSON'S  TRIAL  (1680). 

7  How.  St.  Tr.  811,  874. 

Conviction  for  saying  mass  as  a  priest.  The  defendant,  Marshal,hav- 

ing  been  asked  after  verdict  whether  he  had  anything  to  say,  protested  that 

the  testimony  to  his  confession  of  being  a  priest  was  insufficient.  To 

^""      this  the  Court  replied,  by  the  Recorder:  'As  for  the  first  part,  it 

is  plain,  to  the  satisfaction  of  everybody,  that  there  hath  been  two  suffi- 


7 — Compare    the   authorities   cited   in   W., 

§    1791- 

8 — Vaughan,  C.  J.  in  Bushel's  Case,  6 
How.  St.  Tr.  999,  loio,  Vaughan  135 
(1670):  "It  is  true,  if  the  jury  were  to 
have  no  other  evidence  for  the  fact  hut 
what  is  deposed  in  court  the  judge  might 
know  their  evidence.  .  .  .  But  the  evidence 
which  the  jury  have  of  the  fact  is  much 
other  than  that,  for,  i.  Being  returned  of 
the  vicinage  whence  the  cause  of  action 
ariseth,  the  law  supposeth  them  thence  to 
have  sufficient  knowledge  to  try  the  mat- 
ter in  issue  (and  so  they  must)  though  no 
evidence  were  given  on  either  side  in 
court,   but   to  this  evidence  the  judge  is  a 


stranger;  2,  They  may  have  evidence  from 
their  own  personal  knowledge,  by  which 
they  may  be  assured  and  sometimes  are 
that  what  is  deposed  in  court  is  absolutely 
false;  ...  3,  The  jury  may  know  the  wit- 
nesess    to   be   stigmatized    and   infamous." 

9 — Cal.  P.  C.  1872,  §  1 120:  "If  a  juror 
has  any  personal  knowledge  respecting  a 
fact  in  controversy  in  a  cause,  he  must 
declare  the  same  in  open  court  during  the 
trial.  If  during  the  retirement  of  the 
jury,  a  juror  declare  a  fact  which  could 
be  evidence  in  the  cause,  as  of  his  own 
knowledge,  the  jury  must  return  into  court. 
In  either  of  these  cases,  the  juror  making 
the  statement  must  be  sworn  as  a  witness 


No.  370.  (d)     application  to  court  officers.  353 

cient  witnesses,  upon  whose  testimony  you  are  convicted;  .  .  .  And 
now,  because  I  will  put  it  out  of  all  doubt,  it  is  not  the  business  nor  the 
duty  of  the  Court  to  give  any  evidence  of  any  fact  that  they  know  of 
their  own  knowledge,  unless  they  will  be  sworn  for  the  purpose ;  for, 
though  they  do  not  know  it  in  their  own  private  consciences  to  be  true, 
yet  they  are  obliged  to  conceal  their  own  knowledge,  unless  they  will  be 
sworn  as  witnesses.  But  now  you  are  convicted,  I  must  take  the  lib- 
erty to  tell  you,  that  at  your  last  trial  you  did  own  yourself  to  be  a 
priest.  And  I  must  put  you  in  mind  further  of  something  which  you 
may  very  well  remember ;  when  I  detained  you  after  your  acquittal,  and 
recommitted  you  when  Sir  G.  Wakeman  was  discharged,  I  did  then  tell 
you,  you  have  owned  yourselves  to  be  priests,  I  was  bound  to  take  no- 
tice of  that  confession  of  yours,  and  therefore  obliged  to  detain  you;  such 
a  token  as  that  is  may  perhaps  bring  it  to  your  memory."^" 


TILTON  v.  BEECHER  (1875). 

Abbott's  Rep.   (N.  Y.)   II,  902. 

Criminal  conversation.  At  an  early  stage  of  the  controversy,  before 
litigation,  Mr.  Benjamin  F.  Tracy  had  been  called  into  consultation,  as 
a  friend,  between  the  two  parties  ;  in  the  plaintiff's  case  on  the  trial, 
*"  some  testimony  had  reflected  on  Mr.  Tracy's  share  in  the  negoti- 
ations ;  and  in  his  opening  address  for  the  defendant,  Mr.  Tracy  at  a 
certain  point  in  his  speech  said:  "My  name  has  been  dragged  into  this 
trial  by  the  plaintiff  and  his  counsel  and  his  main  witness,  in  a  manner 
that  leads  me  to  make  you  a  personal  statement  of  my  relations  to  this 
scandal" ;  and  was  proceeding  to  do  so,  when  the  following  colloquy  en- 
sued:  Mr.  Beach:  "Mr.  Tracy,  do  you  propose  to  be  a  witness  to  what 
you  are  about  to  state?"  Mr.  Tracy:  "If  necessary  I  do,  sir."  Mr. 
Beach:  "I  submit  to  your  Honor,  that  the  gentleman  has  no  right  to 
make  a  long  written  personal  statement  in  his  opening  to  the  jury,  which 
he  does  not  propose  to  verify  as  a  witness.  It  is  not  the  office  of  an 
opening."  Judge  Nelson  :  "I  presume  that  the  counsel  proposes  to  prove 
what  he  states  in  his  opening.  ...  At  the  same  time  he  would  be  at 
liberty  to  prove  it  otherwise."  Mr.  Porter:  "We  propose  to  prove  it,  sir, 
as  we  choose,  and  by  what  evidence  we  will.  The  counsel  cannot  call 
upon  us  to  specify  the  particular  witness  by  which  we  propose  to  prove 
it ;  nor  can  he  interrogate  the  counsel  who  is  engaged  in  the  opening  of 
this  case  as  to  whether  he  is  the  party  by  whom  the  proof  is  to  be  made. 
That  will  depend  upon  subsequent  developments  in  the  case."  Mr. 
Beach:  "My  point,  sir,  cannot  be  evaded  or  changed.     I  have  made  no 

and  tiaamined   in   the   presence  of  the  par-  For  the  question   whether  the  judge  who 

t'^s."  testifies    is    thereby    disqualified    to    sit.    see 

Compare    the    authorities    cited    in    W.,    §  post,   No.   407.      For   the  question   of  taking 

1800,   and  Nos.   408,   637,   post.  judicial    notice    from    the    bench,    see    post, 

10 — Compare  tlie  autlioritics  cited  in  W.,  No.    634. 
§    180s. 


354  HEARSAY  RULE.  No.  370. 

objection  to  the  counsel  stating  any  fact  which  they  propose  to  prove  in 
this  case,  whether  that  fact,  when  proved,  will  go  to  his  exculpation  from 
the  grave  imputation  which  has  been  cast  upon  him  in  the  course  of  this 
trial  or  not;  if  it  is  announced  as  a  fact  that  he  expects  to  prove  upon  the 
trial,  I  have  no  more  to  say.  .  .  .  What  I  do  say  is,  sir,  that  when  this 
gentleman,  thus  situated  in  this  case,  departs  from  the  ordinary  course 
of  an  opening  and  commences  a  part  of  his  address  with  the  preface  that 
he  will  now  make  a  personal  explanation  to  this  jury,  that  it  is  not  in 
sense  or  in  purpose  a  statement  of  facts  which  he  expects  to  prove,  it  is 
the  assumption  of  a  right  separate  from  the  character  of  counsel  to  make 
a  personal  explanation  and  appeal  to  the  jury,  which,  I  submit  to  your 
Honor,  is  improper.  That  is  all  I  object  to,  sir;  and  if  this  counsel,  or 
any  other  counsel,  will  avow  that  Mr.  Tracy  or  this  defence  intends  to 
prove  the  facts  or  the  circumstances  which  he  now  proposes  to  state,  of 
course  my  voice  is  silenced,  sir."  Judge  Neilson:  "If  it  is  a  personal  ex- 
planation, not  to  be  followed  up  by  proof — perhaps  not  in  its  nature  sus- 
ceptible of  proof — then  it  should  be  omitted.  I  think  we  agree  about 
that;  the  rule  is  very  clear.  .  .  ."  Mr.  Porter:  "1  evidently  misunder- 
stood my  friend,  from  his  last  explanation.  I  unhesitatingly  avow  that 
the  facts  which  Gen.  Tracy  proposes  to  present  are  facts  which  we  do 
propose  to  prove."  Mr.  Tracy:  'T  shall  endeavor,  gentlemen,  to  state  no 
fact  in  what  I  am  about  to  say  which  will  not  be  made  plain  to  you  by 
•evidence  which  we  shall  introduce,  or  which  will  not  be  made  sufficiently 
plain  to  you  without  further  evidence,  by  the  comments  I  may  make  upon 
the  facts  already  in  evidence."^^ 


PEOPLE  V.  WELLS  (1893). 

100  Cat.  45P,  S4  P<^c.  10/8. 

McFart-and,  J. :  "The  information  charges  the  defendant.  Wells, 
jointly  with  Ollie  Hutchings,  alias  Grace  Gilbert,  with  the  crime  of  forg- 
ery. Wells  was  tried  separately,  was  convicted,  and  appeals  from 
^^^  the  judgment  and  from  an  order  denying  a  new  trial.  .  ,  .  Upon 
cross-examination  of  appellant  the  prosecuting  attorney  asked  him  these 
questions :  'Where  did  you  formerly  reside  ?  Do  you  know  the  Highland 
National  Bank  of  Newberg,  New  York?  Were  you  married  to  your  pres- 
ent wife  when  you  came  here  with  her?  Did  you  not  admit  in  a  letter 
to  Mr.  M.  C.  Belknap  that  in  November,  1893,  you  forged  your  father- 
in-law's  name  to  a  note  in  New  York  ?'  To  these  questions  counsel  for 
appellant  objected  as  incompetent,  immaterial,  irrelevant,  and  not  in 
cross-examination ;  declared  that  they  were  unfair  to  appellant ;  and  asked 
the  court  to  instruct  the  district  attorney  not  to  ask  any  more  such  ques- 
tions. The  record  merely  shows  that  after  discussion  the  objections  were 
sustained.  The  first  three  of  these  questions  are  important  mainly  as 
leading  up  to  the  last  one,  the  asking  of  which  was  utterly  inexcusable 

II— Compare  the  authorities  cited  in  W.,    §    1807,  and   No.   409,   post. 


No,  371.  (d)     application  to  court  officers.  355 

and  reprehensible.  ...  It  would  be  an  impeachment  of  the  legal  learn- 
ing of  the  counsel  for  the  people  to  intimate  that  he  did  not  know  the 
question  to  be  improper  and  wholly  unjustifiable.  Its  only  purpose,  there- 
fore, was  to  get  before  the  jury  a  statement,  in  the  guise  of  a  question, 
that  would  prejudice  them  against  appellant.  If  counsel  had  no  reason 
to  believe  the  truth  of  the  matter  insinuated  by  the  question,  then  the 
artifice  was  most  flagrant;  but  if  he  had  any  reason  to  believe  in  its 
truth,  still  he  knew  that  it  was  a  matter  which  the  jury  had  no  right  to 
consider.  The  prosecuting  attorney  may  well  be  assumed  to  be  a  man 
of  fair  standing  before  the  jury;  and  they  may  well  have  thought  that  he 
would  not  have  asked  the  question  unless  he  could  have  proved  what  it 
intimated  if  he  had  been  allowed  to  do  so.  He  said  plainly  to  the  jury 
what  Hamlet  did  not  want  his  friends  to  say :  'As,  "Well  we  know" ;  or 
"We  could,  an  if  we  would";  or  "If  we  list  to  speak";  or  "There  be,  an 
if  there  might :"  '  This  was  an  entirely  unfair  way  to  try  the  case ;  and 
the  mischief  was  not  averted  because  the  Court  properly  sustained  the 
I  objection  (though  we  think  it  should  have  warned  counsel  against  the 

course  which  he  was  taking)  and  instructed  the  jury  specially  on  the 
subject.  The  wrong  and  the  harm  was  in  the  asking  of  the  question. 
Of  course,  in  trials  of  criminal  cases,  questions  as  to  the  admissibility 
of  evidence  will  frequently  arise  about  which  lawyers  and  judges  may 
fairly  differ  in  opinion ;  and  in  such  cases  defendants  must  be  satisfied 
when  Courts  sustain  their  objections.  But  where  the  prosecuting  attor- 
ney asks  a  defendant  questions  which  he  knows  and  every  judge  and 
lawyer  knows  to  be  wholly  inadmissible  and  wrong,  and  where  the  ques- 
tions are  asked  without  the  expectation  of  answers,  and  where  the  clear 
purpose  is  to  prejudice  the  jury  against  the  defendant  in  a  vital  matter 
by  the  mere  asking  of  the  questions,  then  a  judgment  against  the  defend- 
ant will  be  reversed,  although  objections  to  the  questions  were  sustained, 
unless  it  appears  that  the  questions  could  not  have  influenced  the  ver- 
dict."" 

12 — Compare  the  authorities  cited  in  W.,  §   i8o8. 


356 


BOOK  I,  PART  H. 


No.  372. 


TITLE  IV. 

PRECAUTIONARY  (OR,  PROPHYLACTIC) 
RULES. 


^General  Nature  of  these  Rules.  "Among  the  different  sorts  ot 
rules  of  Auxiliary  Probative  Policy,  this  class  is  marked  out  by  the  spe- 
cial feature  that  they  operate  by  applying  to  the  evidence,  in  ad- 
*  vance  of  its  admission,  some  expedient  calculated  to  supply  an 
antidote  or  prophylactic  for  the  supposed  weakness  or  danger  inherent 
in  the  evidence.  The  several  rules  of  this  sort  thus  are  united  by  this 
common  feature,  in  contrast  with  the  four  other  classes  of  auxiliary 
rules. 

"These  Precautionary  (or.  Prophylactic)  Rules  operate  in  one  or  both 
of  two  slightly  different  ways.  The  expedient  which  they  apply  serves 
either  to  eliminate  the  supposed  danger  by  counteracting  its  influence  in 
advance,  or  to  furnish  a  means  by  which  it  can  be  discovered  and  other 
measures  can  be  taken  to  counteract  it  at  the  trial.  The  Oath  operates 
in  the  first  way  only,  by  setting  against  the  witness'  motives  to  falsify 
his  fear  of  divine  punishment  and  thus  nullifying  in  advance  the  influ- 
ence of  the  former.  The  Perjury-Penalty  operates  in  the  same  way, 
merely  substituting  the  fear  of  temporal  punishment  for  the  fear  of 
divine  punishment.  The  Publicity  rule  operates  in  both  of  the  above 
ways,  first,  by  subjecting  the  witness  to  the  fear  of  the  later  conse- 
quences of  public  opinion  and  of  a  present  exposure  by  interested-  by- 
standers, and,  next,  by  providing  the  means  of  counteracting  his  possible 
falsities  through  the  presence  of  those  who  can  contradict  him.  The 
Sequestration  of  Witnesses  operates  partly  in  the  first  way,  by  preventing 
collusion,  but  chiefly  in  the  second  way,  by  furnishing  a  means  of  ex- 
posing that  collusion  if  it  has  already  taken  place.  The  Notice  of  Evi- 
dence to  the  Opponent  operates  only  in  the  second  way,  by  furnishing 
the  opponent,  in  advance  of  the  trial,  with  knowledge  of  the  proposed 
evidence,  and  by  thus  enabling  him  to  prepare  to  expose  false  evidence; 
though  perhaps  there  is  also  involved  an  effect  of  the  first  sort,  in  sub- 
jectively deterring  the  opponent  from  offering  that  which  he  knows  can 
be  shown  false." 

I — Quoted  from  W.,   §   1813. 


No.  374.  OATH.  357 

SUB-TITLE  I. 

OATH. 

LADY  LISLE'S  TRIAL  (1685). 

//  Hoiv.  St.  Tr.  ^25. 

Jeffries,  C.  J.,  threatening  a  refractory  witness:  "Now  mark  what  I 
say  to  you,  friend  .  .  .  Thou  hast  a  precious  immortal  soul,  and  there  is 
nothing  in  the  world  equal  to  it  in  velue.  .  .  .  Consider  that  the 
Great  God  of  Heaven  and  Earth,  before  whose  tribunal  thou  and 
we  and  all  persons  are  to  stand  at  the  last  day,  will  call  thee  to  an  ac- 
count for  the  rescinding  his  truth,  and  take  vengeance  of  thee  for  every 
falsehood  thou  tellest.  I  charge  thee,  therefore,  as  thou  will  answer  it 
to  the  Great  God,  the  judge  of  all  the  earth,  that  thou  do  not  dare  to 
waver  one  tittle  from  the  truth,  upon  any  account  or  pretense  whatso- 
ever;  .  .  .  for  that  God  of  Heaven  may  justly  strike  thee  into  eternal 
flames  and  maice  thee  drop  into  the  bottomless  lake  of  fire  and  brimstone, 
if  thou  offer  to  deviate  the  least  from  the  truth  and  nothing  but  the 
truth."2 


OMICHUND  v.  BARKERS    (1744). 

Willcs  538,  I  Atk.  45,  I  Wils.  84. 

Several  persons  resident  in  the  East  Indies  and  professing  the  Gen- 
too  religion,  having  been  examined  on  oath  administered  according  to 
the  ceremonies  of  their  religion  under  a  commission  sent  there 
from  the  Court  of  Chancery,  it  became  a  question  whether  those 
depositions  could  be  read  in  evidence  here;  and  the  Lord  Chancellor, 
conceiving  it  to  be  a  question  of  considerable  importance,  desired  the 
assistance  of  Lee,  Lord  Chief  Justice,  B.  R.,  Willes,  Lord  Chief  Jus- 
tice, C.  B.,  and  the  Lord  Chief  Baron  Parker,  who  after  hearing  the 
case  argued  were  unanimously  of  the  opinion  that  the  depositions  ought 
to  be  read. 

2 — Asliburn,   J.,    in   Clinton   v.   State,    33  accountability,     the    law    best    insures    the 

Oh.    St.    3i    (1877):    "The    purpose   of    the  utterance  of  truth." 

oath    is    not    to    call    the    attention    of    God  3 — A  case  of   which   Burke  said   in    1794 

to    the    witness,    but    the    attention    of    the  (Works,    Little    &    Brown's    ed.,    XI,    77): 

witness  to   God;   not   to  call    upon   Him   to  "one    of   the    cases    the    most    solemnly   ar- 

punish    the    false-swearer,    but    on    the    wit-  gued  that  has  been  in  man's  memory,  with 

ness  to  remember  that  he  will  surely  do  so.  the    aid    of    the    greatest    learning    at    the 

By   thus    laying   hold    of    the   conscience    cf  bar,    and    with    the    aid    of   all    the    learning 

the   witness  and   appealing   to   his   sense   of  on    the    bench,    both    bench    and    bar    being 

then  supplied  with  men  of  the  first  form." 


358  PRECAUTIONARY    RULES.  No.  374. 

WiLLES,  C.  J, :  "As  to  the  general  question,  Lord  Coke  has  resolved 
it  in  the  negative,  Co,  Lit.  6  b, — that  an  infidel  cannot  be  a  witness; 
and  it  is  plain  by  this  word  'infidel'  he  meant  Jews  as  well  as  heathens, 
that  is,  all  who  did  not  believe  the  Christian  religion.  .  .  .  Having 
now,  I  think,  sufficiently  shown  that  Lord  Coke's  rule  is  without  foun- 
dation either  in  Scripture,  reason,  or  law,  that  I  may  not  be  understood 
in  too  general  a  sense,  I  shall  repeat  it  over  again,  that  I  only  give 
my  opinion  that  such  infidels  who  believe  a  God  and  that  he  will  punish 
them  if  they  swear  falsely,  in  some  cases  and  under  some  circumstances, 
may  and  ought  to  be  admitted  as  witnesses  in  this  though  a  Christian 
country.  And  on  the  other  hand,  I  am  clearly  of  opinion  that  such 
infidels  (if  any  such  there  be)  who  either  do  not  believe  a  God,  or  if 
they  do,  do  not  think  that  he  will  either  reward  or  punish  them  in 
this  world  or  in  the  next,  cannot  be  witnesses  in  any  case  nor  under 
any  circumstances,  for  this  plain  reason,  because  an  oath  cannot  pos- 
;sibly  be  any  tie  or  obligation  upon  them.*  ... 

"In  order  to  obtain  justice  the  plaintiff  in  this  cause  laid  his  case 
properly  before  the  Court  of  Chancery,  and  prayed  a  commission  to 
Calcutta;  and  the  Court  of  Chancery,  I  think  very  rightly  and  with 
great  justice,  ordered  a  commission  to  go,  and  that  the  words  'on  the 
Holy  Evangelists'  should  be  omitted,  and  the  word  'solemnly'  inserted 
in  their  room ;  and  likewise  very  prudently  directed  that  the  commis- 
sioners should  certify  upon  the  return  of  the  commission  in  what  manner 
the  oath  was  administered  to  the  witnesses  examined  on  the  commis- 
sion; and  what  religion  they  were  of.  The  commissioners  accordingly 
returned  that  the  oath  was  administered  to  the  witnesses  in  the  same 
words  as  here  in  England,  which  fully  answers  the  objection  (if  there 
was  anything  in  it)  that  the  form  of  the  oath  cannot  be  altered ;  and 
they  certified  that  after  the  oath  was  read  and  interpreted  to  them, 
they  touched  the  Bramin's  hand  or  foot,  the  same  being  the  usual  and 
most  solemn  manner  in  which  oaths  are  administered  to  witnesses  who 
profess  the  Gentoo  religion,  and  in  the  same  manner  in  which  oaths  are 
usually  administered  to  persons  who  profess  the  Gentoo  religion  on  their 
examination  as  witnesses  in  the  Courts  of  justice  erected  by  virtue 
of  his  Majesty's  letters-patent  at  Calcutta;  and  they  further  certified 
that  the  witnesses  so  examined  were  all  of  the  Gentoo  religion.  This 
certificate,  I  think,  fully  answers  the  objection  that  it  does  not  appear 
that  the  witnesses  believe  a  God,  or  that  he  will  punish  them  if  they 
swear  falsely;  which,  as  I  have  already  said,  I  admit  to  be  requisites 
absolutely  necessary  to  qualify  a  person  to  take  an  oath.  .  .  .  Lord  Stairs 
in  his  Institutes  of  the  Laws  of  Scotland,  p.  692,  confirms  this,  where 
he  says,  'It  is  the  duty  of  Judges  in  taking  the  oaths  of  witnesses  to 
do  it  in  those  forms  that  will  most  touch  the  conscience  of  the  swearers 
according  to  their   persuasion   and   custom ;   and  though  Quakers   and 

4 — In  another  of  the   reports,  his  words  be  witnesses,   yet  I  am  as  clearly  of  opin- 

are:      "Though   I   am   of   opinion   that   infi-  ion   that   if  they   do   not  believe   a   God   or 

dels  who  believe  a  God  and  future  rewards  future      rewards     and     punishments,     they 

and   punishments    in    the    other    world   may  ought  not  to   be  admitted  as   witnesses." 


No.  375.  I.     OATH.  359 

fanatics  deviating  from  the  common  sentiments  of  mankind  refuse  to 
give  a  formal  oath,  yet  if  they  do  that  which  is  materially  the  same,  it 
is  materially  an  oath.'  .  .  .  The  form  of  oaths  varies  in  countries  ac- 
cording to  different  laws  and  constitutions,  but  the  substance  is  the 
same  in  all.  ...  It  would  be  absurd  for  him  to  swear  according  to 
the  Christian  oath,  which  he  does  not  believe;  and  therefore,  out  of 
necessity,  he  must  be  allowed  to  swear  according  to  his  own  notion  of 
an  oath." 

Hardwicke,  L.  C.  (approving  a  passage  from  Bishop  Sanderson)  : 
"  'Juramentum,  saith  he,  est  afRrmatio  religioso.  All  that  is  necessary 
to  an  oath  is  an  appeal  to  the  Supreme  Being,  as  thinking  him  the  re- 
warder  of  truth  and  the  avenger  of  falsehood.'  .  .  .  The  next  thing 
...  is  the  form  of  the  oath.  It  is  laid  down  by  all  writers  that  the 
outward  act  is  not  essential  to  the  oath.  ...  It  has  been  the  wisdom  of 
all  nations  to  administer  such  oaths  as  are  agreeable  to  the  notion  of  the 
person  taking."^ 


Joseph  Chitty,  Criminal  Law,  4th  Amer.  ed.,  I,  616  (1841) :    "The 

form  at  the  assizes  or  sessions  is,  for  the  clerk  of  arraigns  or  of  the 

peace  to  desire  the  witness  to  take  the  book  in  his  hand,  and. 

owe  *  _  '  ' 

**'"  when  that  is  done,  to  say  to  him,  'The  evidence  you  shall  give 
between  our  sovereign  lord  the  king  and  the  prisoner  at  the  bar  shall 
be  the  truth,  the  whole  truth,  and  nothing  but  the  truth.  So  help  you 
God!';  upon  which  the  witness  kisses  the  book."^ 

S—Alderson,   B.,   in   Miller  v.   Salomons,  in    other    words,    does    the    witness    believe 

7  Exch.  535,  558,  61S   (1852):     "Omichund  in  the  existence  of  a  God  who  will  punish 

V.    Barker    has   settled    that   it    ought    to    be  his    perjury?      If    he    swears    falsely,    does 

taken    in   that  form  and  upon   that   sanction  he     believe     he     will     be     punished     by     an 

which   most  effectually  binds  the  conscience  overruling   Providence,   either  in   this   world 

of  the  party  swearing.     Thus,  a  Jew  is  to  or  in   the  world  to  come"? 
be    sworn    on    the    Book    of    the    Law    and  Pearson,  J.,   in  Shaw  v.   Moore,  4  Jones 

with    his   head   covered,   a   Brahmin   by  the  L.    26    (1856):    "There    is    no    ground    for 

mode    prescribed    by    his    peculiar    faith,    a  making   a    distinction   between    the    fear    of 

Chinese  by  his  special  ceremonies,  and  the  punishment   by  the   Supreme   Being  in   this 

like."      Pollock,    C.    B. :    "It   appears   to  me  world   and   the   fear   of  punishment   in   the 

to  have  decided  merely  this,— that  the  com-  world   to   come.      Both    are    based    upon    tHe 

mon    law    of    England   agrees    with    the    law  sense    of    religion.  .   .   .   The    efficacy   of   the 

of  nations,   that   the   form   of  an   oath   is   to  fear   of   punishment   in   either  case   depends 

be    accommodated    to    the    religious    persua-  upon    the    degree    of    belief   as    to    the    cer- 

sion    which    the   swearer    entertains."      Mar-  tainty    of    that    punishment,    so    that    there 

tin,     B.:         "The    doctrine    laid    down     [in  can   be  upon   reason   no   ground   for   making 

Omichund  v.  Barker]    was  that  the  essence  a   distinction.      The   rule   of   law   which   re- 

of  another   oath   was  an   appeal   to  the  Su-  quires    a    religious   sanction    is    satisfied    in 

preme  Being  in  whose  existence  the  person  either    case." 

taking  the  oath  believed,  and  whom  he  also  Compare  the  authorities  cited   in   VV.,    §5 

believed   to   be   a  rewarder  of  truth   and   an  1817,    1818. 
avenger  of  falsehood."  6— The    usual    form    of    words    in    civil 

Wahi'orth,    J.,    in    People    v.    Matteson,  cases  differed  slightly:     "The  evidence  that 

2    Cow.    433     (1824):      "I    apprehend    the  you    shall     give    to    the    Court    and    jury, 

true   test   of   the   competency   of   a   witness  touching   the   matters   in   question,  shall   be 

to  be  this:     Has  the  obligation  of  an  oath  the    truth,    the    whole    truth,    and    nothing 

any   binding  tie   upon   his   conscience?     Or  but  the  truth;   So  help  you  God!" 


360 


PRECAUTIONARY    RULES. 


No.  376. 


BRADDON'S  TRIAL    (1684). 

p  How.  St.  Tr.  7/27,  1148. 

Attorney  General:  "What  age  are  you  of?"  Witness:  "1  am 
thirteen,  my  lord."  A.  G.:  "Do  you  know  what  an  oath  is?"  W.: 
"No."  L.  C.  J.  Jefferies:  "Suppose  you  should  tell  a  lie;  do 
^^^  you  know  who  is  the  father  of  hars  ?"  IV.:  "Yes."  L.  C.  J.: 
"Who  is  it?"  W.:  "The  devil."  L.  C.  J.:  "And  if  you  should  tell  a 
lie,  do  you  know  what  will  become  of  you?"  W.:  "Yes."  L.  C.  J.: 
"If  you  should  call  God  to  witness  to  a  lie,  what  would  become  of  you 
then?"  W.:  "I  should  go  to  hell-fire."  L.  C.  J.:  "That  is  a  terrible 
thing;"  and  the  child  was  admitted.'^ 


Statutes:     California,  Const.  1879,  Art.  I,  §4:     "No  person  shall 
be   rendered   incompetent   to   be   a  witness  or  juror  on  account  of  his 

opinion  on  matters  of  religious  belief." 
^'^  lilinois,  Const.  1870,  Art  II,  §3:     "No  person  shall  be  denied 

any  civil  or  political  right,  privilege,  or  capacity,  on  account  of  his 
religious  opinions;  but  the  liberty  of  conscience  hereby  secured  shall 
not  be  construed  to  dispense  with  oaths  or  affirmations."  Rev.  St.  1874, 
c.  loi,  §  3 :  An  oath  may  lawfully  be  administered  "in  the  following 
form,  to-wit:  The  person  swearing  shall,  with  his  hand  uplifted,  swear 
by  the  everliving  God,  and  shall  not  be  compelled  to  lay  the  hand  on 
or  kiss  the  gospels."  lb.,  §4:  When  "such  person  shall  have  conscien- 
tious scruples  against  taking  an  oath,  he  shall  be  admitted,  instead  of 
taking  an  oath,  to  make  his  solemn  affirmation  or  declaration  in  the 
following  form,  to-wit:  You  do  solemnly,  sincerely,  and  truly  declare 
and  affirm." 


7 — Campbell,  C.  J.,  in  Hughes  v.  1?.  Co., 
65  Mich.  10,  31  N.  W.  605  (1887):  "A 
child  cannot  testify  unless  capable  of  ap- 
preciating the  obligation  of  his  oath,  if  he 
takes  an  oath,  or  his  affirmation  if  that 
is  substituted.  .  .  .  He  must  be  able  to 
comprehend  it;  .  .  .  disposed  to  tell  the 
truth  under  some  sense  of  obligation.  .  .  . 
We  are  compelled  to  apply  the  law  as  we 
find  it,  until  changed  by  legislation.  But 
we  are  greatly  impressed  with  the  prac- 
tical imperfection  of  the  present  rules.  In 
France,  and  probably  elsewhere,  the  Courts 
refuse  to  administer  an  oath  to  children 
of  tender  years,  and  allow  them  to  be 
examined  without  anything  more  than 
suitable  cautions,  leaving  their  statements 
on  direct  and  cross-examination  to  be  tak- 
en for  what  they  are  worth.  This  seems 
to  be  a  sensible  proceeding,  and  is  prob- 
ably quite  as  efficacious  as  our  present 
system    and    less    likely    to    abuse.  ...  It 


would  be  better,  we  think,  to  put  their 
testimony  on  the  more  rational  ground 
that  it  is  calculated  to  be  of  some  value, 
and  capable  under  a  proper  examination  of 
being'  reasonably  well  weighed  for  what 
it   is   worth." 

England:  1885,  St.  48  &  49  Vict.  c.  69, 
§  4:  on  a  charge  of  carnally  knowing  a 
girl  under  the  age  of  consent,  where  the 
girl  concerned  "or  any  other  child  of  ten- 
der years  who  is  tendered  as  a  witness, 
does  not,  in  the  opinion  of  the  Court  or 
justices,  understand  the  nature  of  an  oath," 
the  child's  testimony  may  be  received  with- 
out oath,  if  the  Court  believes  that  it  "is 
possessed  of  sufficient  intelligence  to  justi- 
fy the  reception  of  the  evidence,  and  un- 
derstands the   duty   of  speaking  the  truth." 

Compare  the  authorities  cited  in  W.,  § 
1821;  and  the  case  of  R.  v.  Brasier,  ante, 
No.   61    (infant's  capacity  as  a  witness). 


No.  379.  I.     OATH.  361 

Massachusetts, Rev.L.igo2,c.i7s.^  i8:  "Every  person  who  declares  that 
he  has  conscientious  scruples  against  taking  any  oath  shall,  when  called 
upon  for  that  purpose,  be  permitted  to  affirm  in  the  manner  prescribed 
for  Quakers,  if  the  Court  or  magistrate  on  inquiry  is  satisfied  of  the 
truth  of  such  declaration."'  lb.,  §  19:  "Every  person  believing  in  any 
other  than  the  Christian  religion  may  be  sworn  according  to  the  peculiar 
ceremonies  of  his  religion,  if  there  are  any  such.  Every  person  not  a 
believer  in  any  religion  shall  be  required  to  testify  truly  under  the 
pains  and  penalties  of  perjury;  and  the  evidence  of  such  person's  dis- 
belief in  the  existence  of  God  may  be  received  to  affect  his  credibility 
as  a  witness." 

United  States,  Federal  Equity  Rules,  No.  91 :  "Whenever  under 
these  rules  an  oath  is  or  may  be  required  to  be  taken,  the  party  may,  if 
conscientiously  scrupulous  of  taking  an  oath,  in  lieu  thereof  make  sol- 
emn affirmation  to  the  truth  of  the  facts  stated  by  him,"^ 


SUB-TITLE  II. 

PERJURY— PENALTY. 


Thomas   Starkie,  Evidence,  pi    (1824).     "The  testimony  must  be 
sanctioned,  not  merely  by  an  oath,  but  by  a  judicial  oath,  in  the  course 
of  a  regular  proceeding,  by  an  authorized  person.    For  if  the  oath 
were  extrajudicial,   the   witness   could  not  be  punished  for   com- 
mitting perjury  under   that   oath,   and   therefore  one   of  the   securities 
for  truth  which  the  law  has  provided  would  be  wanting."® 


SUB-TITLE  III. 

PUBLICITY. 


Sir    John    Hawles,    Solicitor-General,    commenting    on  Cornish's 
Trial,  in  //  How.  St.  Tr.  460  (about  1690)  :    "The  reason  that  all  mat- 
ters of  law  are,  or  ought  to  be,  transacted  publicly  is  that  any 
person,  unconcerned  as  v/ell  as  concerned,  may  as  amicus  curia 
inform  the  Court  better,  if  he  thinks  they  are  in  error,  that  justice  may 

8 — Compare  the   authorities  cited   in   W.,  they  cannot  be  indicted  for  perjury  because 

§    1828.  the    fact    was  committed    in    another    coun- 

9 — Willes,  C.  J.,  in  Omichund  v.  Barker,  try.      Those   therefore   who  are  plainly  not 

Willes    538,    SS3     (1744):    "When    the    de-  liable   to   be  indicted   for   perjury   have   of- 

positions  of  witnesses  are  taken  in  another  fen  been,  and  for  the  sake  of  justice  must 

country,    it    frequently    happens    that    they  be,    admitted   as    witnesses.      And    so    there 

never    come    over    hither,    or    if    [they    do]  is   an   end   of  this   objection." 


362  PRECAUTIONARY    RULES.  No.  379. 

be  done;  and  the  reason  that  all  trials  are  public  is  that  any  person 
may  inform  in  point  of  fact,  though  not  subpoenaed,  that  truth  may  be 
discovered,  in  civil  as  well  as  in  criminal  cases.  There  is  an  invitation, 
to  all  persons  who  can  inform  the  court  concerning  the  matter  to  be 
tried,  to  come  into  the  court,  and  they  shall  be  heard."^** 


Sir  William  Blackstone^  Commentaries,  III,  j/j  (1768):  "This 
open  examination  of  the  witnesses,  viva  voce,  in  the  presence  of  all 
mankind,  is  much  more  conducive  to  the  clearing  up  of  truth 
than  the  private  and  secret  examination  taken  down  before  an 
officer  or  his  clerk,  in  the  ecclesiastical  courts  and  all  others  that  have 
borrowed  their  practice  from  the  civil  law ;  where  a  witness  may  fre- 
quently depose  that  in  private  which  he  will  be  ashamed  to  testify  in  a 
public  and  solemn  tribunal." 


SUB-TITLE  IV. 

SEPARATION  OF  WITNESSES. 

The  History  of  Susanna:  "[Two  elders  coveted  Susanna,  a  very 
fair  woman  and  pure,  the  wife  of  Joacim;  they  tempted  her,  but  she 
resisted;  then  they  plotted,  and  charged  her  with  adultery;  and 
^^  she  was  brought  before  the  assembly  to  be  tried;]  and  the  elders 
said :  'As  we  walked  in  the  garden  [of  Joachim]  alone,  this  woman 
came  in  with  two  maids,  and  shut  the  garden  doors,  and  sent  the  maids 
away.  Then  a  young  man,  who  there  was  hid,  came  unto  her,  and  lay 
with  her.  Then  we  that  stood  in  the  corner  of  the  garden,  seeing  this 
wickedness,  ran  unto  them.  And  when  we  saw  them  together,  the 
man  we  could  not  hold,  for  he  was  stronger  than  we  and  opened  the  door 
and  leaped  out.  But  having  taken  this  woman,  we  asked  who  the  young 
man  was,  but  she  would  not  tell  us.  These  things  do  we  testify.'  Then 
the  assembly  believed  them,  as  those  that  were  the  elders  and  judges 
of  the  people.  .  .  .  [But  Daniel,]  standing  in  the  midst  of  them,  said 
.  .  .  Are  ye  such  fools,  ye  sons  of  Israel,  that  without  examination  or 
knowledge  of  the  truth  ye  have  condemned  a  daughter  of  Israel.'  .  .  . 

10 — Lord  Eldon,  in  Twiss'  Life  of  Eldon,  whom  he  tenderly  loved  and  his  children 
1,  300  (1797):  "I  prosecuted  a  ship  at  whom  he  was  extremely  fond  of,  at  the 
Bristol  to  condemnation  for  having  on  end  of  a  very  long  voyage  in  which  he 
board  smuggled  goods  to  a  great  amount.  had  been  absent  from  them.  This  was 
George  Rous,  who  was  a  good-natured  all  coinage.  But  it  was  put  a  stop  to  by 
friendly  man,  but  violent  in  court,  and  par-  a  sailor  in  court  starting  up  and  exclaim- 
ticularly  as  counsel  for  smugglers,  raved  ing,  'Weil,  that's  a  good  on«!  That's  a 
in  this  case  and  swore  that  I  had  con-  good  fetch!  Why,  my  mistress  and  her 
trived  to  have  these  goods  put  on  board  children  were  aboard  ship  with  our  cap- 
in  order  to  condemn  the  ship,  whilst  the  tain  during  the  whole  of  the  voyage!'  " 
captain    had    gone    ashore    to    see    a    wife 


No.  382.  IV.      SEPARATION    OF    WITNESSES.  363 

Then  Daniel  said  unto  them,  'Put  these  two  aside,  one  far  from  another, 
and  I  will  examine  them.'  So  when  they  were  put  asunder  one  from 
another,  he  called  one  of  them,  and  said  unto  him  i^  'Now  then,  if 
thou  hast  seen  her,  tell  me,  under  what  tree  sawest  thou  them  com- 
panying  together?'  who  answered,  'Under  a  mastick  tree.'  And  Daniel 
said,  'Very  well ;  thou  hast  lied  against  thine  own  head.'  .  .  So  he  put 
him  aside,  and  commanded  to  bring  the  other,  and  said  unto  him,^  .  .  . 
'Now  therefore  tell  me,  imder  what  tree  didst  thou  take  them  company- 
ing  together  ?"  who  answered,  'Under  an  holm  tree.'  Then  said  Daniel 
unto  him,  'Well ;  thou  hast  also  lied  against  thine  own  head.'  .  .  .  With 
that,  all  the  assembly  cried  out  with  a  loud  voice,  and  praised  God  who 
saveth  them  that  trust  in  him.  And  they  arose  against  the  two  elders, 
for  Daniel  had  convicted  them  of  false  witness,  by  their  own  mouth. 
.  .  .  From  that  day  forth  was  Daniel  had  in  great  reputation  in  the  sight 
of  the  people."^^ 


LAUGHLIN  V.  STATE    (1849). 

18  Oh.  pp,  102. 

The  plaintiff  in  error  was  indicted  for  rape,  and  for  an  assault  with 
intent  to  commit  a  rape,  and  convicted  and  sentenced  upon  the  latter 
charge.  .  .  .  Before  the  examination  of  the  witnesses  had  been 
**^^  commenced,  the  counsel  for  the  defendant  requested  that  the  wit- 
nesses for  the  State  should  be  examined  out  of  the  hearing  of  each 
other;   and   that  they  should  be  ordered  to  withdraw  from  the  court 

II — McCIellan,  C.  J.,  in  Louisville  &  N.  accompanied  with  notice  that  if  they  re- 
R.  Co.  V.  York,  128  Ala.  305,  30  So.  676  main  they  will  not  be  examined." 
(1902):  "The  purpose  to  be  subserved  in  California :  P.  C.  1872,  §  867,  a  corn- 
putting  witnesses  under  the  rule  is  that  mitting  magistrate  "may  exclude  all  wit- 
they  may  not  be  able  to  strengthen  or  nesses  who  have  not  been  examined;  he 
color  their  own  testimony,  or  to  testify  may  also  cause  the  witnesses  to  be  kept 
to  greater  advantage  in  line  with  their  separate,  and  to  be  prevented  from  con- 
bias,  or  to  have  their  memories  refreshed,  versing  with  each  other  until  they  are  all 
sometimes  unduly,  by  hearing  the  testimony  examined";  ib.  §  868:  he  "must  also,  upon 
of  other  witnesses;  and  it  is  legitimate  ar-  the  request  of  the  defendant,  exclude  from 
gument  against  the  veracity  or  fairness  of  the  examination  every  person  except  his 
a  witness  to  say  that  his  testimony  has  clerk,  the  prosecutor  and  his  counsel,  the 
been  developed  along  the  lines  of  his  in-  attorney-general,  the  district  attorney  of 
clination  in  the  case  by  the  opportunities  the  county,  the  defendant  and  his  counsel, 
he  has  had,  from  hearing  the  other  wit-  and  the  officers  having  the  defendant  in 
nesses,  to  refute  them  or  to  amplify  his  custody";  C.  C.  P.  1872,  §  2043:  "If 
own  statements  to  meet  the  exigencies  of  cither  party  requires  it,  the  judge  may 
the  trial."  exclude    from    the   court-room    any    witness 

Hanley,   J.,   in   Golden   v.  State,    19   Ark.  of    the    adverse    party";    amended    by    the 

59°.  598   (1858):     "The  course  in  such  case  Commissioners   in    1901,   by  adding:    "but  a 

is   either   to   require  the   names   of   the   wit-  party    to    the    action    or    proceeding   cannot 

nesses   to   be  stated  by   the  counsel   of  the  be   so  excluded,    and   if  a   corporation    is  a 

respective  parties  by  whom   they  were  sum-  party    thereto,    it    is    entitled    to    the    pres- 

moned,    and    to    direct    the    sheriff   to    keep  ence  of  one  of  its  officers,  to  be  designated 

them    in    a    separate    room    until    they    are  by    its    attorney." 

called  for;  or,  more  usually,  to  cause  them  Compare   the  authorities  cited   in   W.,   §J 

to   withdraw   by   an    order    from    the    bench  1839,    1841. 


364 


PRECAUTIONARY    RULES. 


No.  382. 


room,  and  the  order  was  made  as  requested.  Notwithstanding  this 
order,  Robert  Johnson,  the  father  of  the  girl,  whose  name  was  not  on  the 
subpoena  as  a  witness,  but  who  was  sworn  with  the  other  witnesses 
before  they  retired,  and  who  remained  in  court,  seated  by  the  counsel 
for  the  State,  and  heard  the  testimony  of  his  daughter  and  the  other 
witnesses  who  were  examined,  was  offered  as  a  witness  on  the  part 
of  the  State.  The  counsel  for  the  defendant  objected  to  his  being  ex- 
amined, he  having,  contrary  to  the  order  of  the  court,  remained  within 
the  bar.  When  inquired  of  by  the  Court  why  he  disobeyed  the  order 
in  remaining  within  the  bar,  he  stated  that  he  heard  the  order  of  the 
Court,  but  did  not  understand  the  meaning  of  it.  The  Court  overruled 
the  objection,    and  Johnson   was   examined   as   a  witness. 

Caldwell^  J. :  "The  most  important  question  arising  in  the  case, 
and  the  only  one  that  the  counsel  for  the  accused  have  relied  on  in 
argument,  arises  on  the  admission  of  Robert  Johnson,  the  father  of  the 
girl,  as  a  witness. 

"This  is  a  question  of  no  little  delicacy.  It  relates  exclusively  to 
the  fairness  of  proceeding  on  the  trial.  Much  may  be  said  on  both 
sides  of  the  case,  and  on  part  of  the  accused  in  this  case,  many  con- 
siderations meriting  a  careful  examination  have  been  presented.  On 
the  one  side,  where  the  order  of  the  Court  has  been  made  for  the  wit- 
nesses to  retire,  and  be  examined  out  of  the  hearing  of  each  other,  if 
a  witness  remains  in  violation  of  the  order,  it  furnishes  strong  ground 
of  suspicion  that  the  witness  is  not  fairly  disposed  in  the  cause,  and 
that  he  wishes  to  avail  himself  of  the  testimony  of  the  other  witnesses, 
in  order  to  make  his  statements  as  potent  as  possible,  by  making  them 
correspond  with  theirs.  Where,  too,  a  party  in  interest  in  the  cause, 
after  the  order  has  been  made,  should  procure  his  witnesses  to  be  pres- 
ent in  violation  of  such  order,  it  is  equally  suspicious  that  he  intends 
a  similar  degree  of  wrong  and  unfairness.  On  the  other  hand,  when  we 
consider  the  little  control  that  a  party  can  have  over  his  witnesses ;  the 
little  attention  he  is  likely  to  be  able  to  give  to  their  movements ;  the 
crowds  and  the  confusion  that  generally  exist  during  exciting  trials ;  the 
questions  that  may  arise  on  the  trial  that  could  not  be  anticipated,  and 
which  may  require  bystanders  to  be  called  in  as  witnesses,  who  have  been 
present  and  heard  the  other  witnesses  testify, — these,  and  other  consider- 
ations which  might  be  presented,  render  it  difficult  and  we  think  impos- 
sible to  establish  any  general  rule  of  exclusion  that  would  not  in  many 
cases  deprive  parties  of  important  and  necessary  testimony  for  the  fair 
presentation  of  their  cause.  We  do  not  find  that  any  rule  has  been  es- 
tablished, in  this  country,  that  would  justify  this  court,  as  a  court  of 
errors,  in  deciding  that  it  was  error  in  an  inferior  court  to  admit  a 
witnesses  who  had  violated  the  order,  and  heard  the  other  witnesses  tes- 
tify."i2 

12 — Compare  the  authorities  cited  in  W.,   §    1842. 


No.  384.  V.      DISCOVERY    BEFORE    TRIAU  365 


SUB-TITLE  V. 


DISCOVERY  OR  NOTICE  OE  EVIDENCE  TO  THE  OPPO- 
NENT BEFORE  TRIAL. 

Sir  James  Stephen,  History  of  the  Criminal  Law,  I,  225,  ^p8 
(1883)  :  "I  do  not  think  any  part  of  the  old  procedure  operated  more 
harshly  upon  prisoners  than  the  summary  and  secret  way  in 
^^'*  which  justices  of  the  peace,  acting  frequently  the  part  of  de- 
tective officers,  took  their  examinations  and  committed  them  for  trial. 
It  was  a  constant  and  most  natural  and  reasonable  topic  of  complaint 
by  the  prisoners  who  were  tried  for  the  Popish  Plot  that  they  had  been 
taken  without  warrant,  kept  close  prisoners  from  the  time  of  their 
arrest,  and  kept  in  ignorance  of  the  evidence  against  them  till  the 
very  moment  when  they  were  brought  into  Court  to  be  tried.  This  is 
set  in  a  strong  light  by  the  provisions  of  [1709,  St.  7  Anne,  c.  21,  §  14, 
quoted  infra,  allowing  a  list  of  witnesses  in  treason].  .  .  .  This  was  con- 
sidered as  an  extraordinary  effort  of  liberality.  It  proves,  in  fact,  that 
even  at  the  beginning  of  the  eighteenth  century,  and  after  the  experi- 
ence of  the  State  trials  held  under  the  Stuarts,  it  did  not  occur  to 
the  Legislature  that,  if  a  man  is  to  be  tried  for  his  life,  he  ought  to  know 
beforehand  what  the  evidence  against  him  is,  and  that  it  did  appear 
to  them  that  to  let  him  know  even  what  were  the  names  of  the  wit- 
nesses was  so  great  a  favor  that  it  ought  to  be  reserved  for  people 
accused  of  a  crime  for  which  legislators  themselves  or  their  friends 
and  connections  were  likely  to  be  prosecuted.  It  was  a  matter  of  direct 
personal  interest  to  many  members  of  Parliament  that  trials  for  political 
offences  should  not  be  grossly  unfair ;  but  they  were  comparatively  in- 
different as  to  the  fate  of  people  accused  of  sheep-stealing  or  burglary 
or  murder.  .  ,  .  [The  prisoner]  was  not  allowed  as  a  matter  of  right, 
but  only  as  an  occasional  exceptional  favor,  ...  to  see  his  [own]  wit- 
nesses or  put  their  evidence  in  order.  When  he  came  into  Court,  he 
was  set  to  fight  for  his  life  with  absolutely  no  knowledge  of  the  evi- 
dence to  be  produced  against  him." 


Statutes:  Michigan,  Comp.  L.  1897.  §11883:  The  foreman  shall 
return  to  court  or  deliver  to  the  prosecuting  attorney  "a  list  of  all  the 
witnesses  sworn  before  the  grand  jury,"  when  an  indictment  is 
^*  found.  lb.,  §11893:  The  indictment,  "with  the  names  of  the 
complainant  and  all  the  witnesses  indorsed  on  the  back  thereof."  is 
to  be  filed.  lb.,  §  11934:  The  prosecuting  attorney,  on  filing  an  infor- 
mation, shall  "indorse  thereon  the  names  of  all  the  witnesses  known  to 
him  at  the  time  of  filing  the  same,  and  at  such  time  before  the  trial  of 
any  case  as  the  Court  may  by  rule  or  otherwise  prescribe,  he  shall  also 


366 


PRECAUTIONARY    RULES. 


No.  384. 


endorse  thereon   the  names  of  such  other  witnesses  as   shall  then  be 
known  to  him." 

United  States,  St.  1790,  April  30,  §29,  Rev.  St.  1878,  §  1033:  A  list 
"of  the  witnesses  to  be  produced  on  the  trial  for  proving  the  indictment, 
stating  the  place  of  abode,"  is  to  be  delivered  "at  least  three  entire  days" 
before  trial,  for  treason,  and  "at  least  two  entire  days"  before,  for 
other  capital  offenses.^^ 


Sir  James  Wigram,  V.  C,  Discovery,  §§5/,  5.?,  148  (1836): 
"Proposition  I :  It  is  the  right,  as  a  general  rule,  of  a  plaintiff  in  equity 
to  examine  the  defendant  as  to  all  matters  of  fact  which,  being 
^°^  well  pleaded  in  the  bill,  are  material  to  the  proof  of  the  plaintiff's 
case  and  which  the  defendant  does  not  by  his  form  of  pleading  admit. 
Proposition  II :  Courts  of  equity,  as  a  general  rule,  oblige  a  defendant 
to  pledge  his  oath  to  the  truth  of  his  defense.  With  this  (if  a)  quali- 
fication, the  right  of  a  plaintiff  in  equity  to  the  benefit  of  the  defend- 
ant's oath  is  limited  to  a  discovery  of  such  material  facts  as  relate  to  the 
plaintiff's  case,  and  does  not  extend  to  a  discovery  of  the  manner  in 
which  or  the  evidence  by  means  of  which  the  defendant's  case  is  to  be 
established,  or  to  any  discovery  of  the  defendant's  evidence.  ...  If  it 
were  now  for  the  first  time  to  be  determined  whether  in  the  investiga- 
tion of  disputed  facts  truth  would  be  best  elicited  by  allowing  each  of 
the  contending  parties  to  know  before  the  trial  in  what  manner  and 
by  what  evidence  his  adversary  proposed  to  establish  his  own  case, 
arguments  of  some  weight  might  a  priori  be  adduced  in  support  of  the 
affirmative  of  this  important  question.  Experience,  however,  has  shown 
— or,  at  least,  Courts  of  justice  in  this  country  act  upon  the  principle 
— that  the  possible  mischiefs  of  surprise  at  a  trial  are  more  than  counter- 
balanced by  the  danger  of  perjury  which  must  inevitably  be  incurred 
when  either  party  is  permitted  before  a  trial  to  know  the  precise  evi- 
dence against  which  he  has  to  contend.  And  accordingly,  by  the  settled 
rules  of  Courts  of  justice  in  this  country  (approved  as  well  as  ac- 
knowledged) each  party  in  a  cause  has  thrown  upon  him  the  onus  of 
supporting  his   own   case  and   meeting  that   of  his  adversary  without 


13 — Douglass,  J.,  in  Gardner  v.  People, 
4  III.  83.  89  (1841):  "The  list  of  wit- 
nesses which  is  required  to  be  furnished  to 
the  prisoner  prior  to  the  arraignment  is  to 
be  composed  of  the  witness  endorsed  on 
the  indictment  by  the  foreman  of  the  grand 
jury.  .  .  .  The  question  is  now  presented 
whether  the  prosecuting  attorney  is  to  be 
confined  to  the  list  of  witnesses  endorsed 
on  the  back  of  the  indictment.  ...  If 
such  a  construction  were  placed  upon  this 
statute  as  would  exclude  all  witnesses 
whose  names  were  not  endorsed  on  the  in- 
dictment, many  offenders  would  go  unpun- 
ished, not  on  account  of  their  own  inno- 
tence,  nor  of  the  negligence  of  the  State's 


attorney,  but  by  a  defect  in  the  law  itself, 
or  a  narrow  and  illiberal  construction  of 
it  not  sanctioned  by  reason  or  justice.  We 
think,  therefore,  that  the  prosecution  is 
not  confined  to  the  list  of  witnesses  en- 
dorsed on  the  indictment  and  furnished 
previous  to  arraignment;  but  that  the  Cir- 
cuit Court,  in  the  exercise  of  a  sound  dis- 
cretion, and  having  a  strict  and  impartial 
regard  to  the  rights  of  the  community  and 
the  prisoner,  may  permit  such  other  wit- 
nesses to  be  examined  as  the  justice  of  the 
case   may  seem   to   require." 

Compare   the   authorities   cited   in   W.,   §§ 
1850-1855. 


No.  387.  V.      DISCOVERY   BEFORE   TRIAL.  367 

knowing  beforehand  by  what  evidence  the  case  of  his  adversary  is  to 
be  supported  or  his  own  opposed." 


COMBE  V.  LONDON  (1840). 
■  4  Y.  &  C.  139,  155- 
Aeinger,  L.  C.  B.:  "A  party  has  a  right  to  file  a  bill  of  discovery 
for  the  purpose  of  obtaining  such  facts  as  may  tend  to  prove  his  case; 
and  if  those  facts  are  either  in  possession  of  the  other  party,  or, 
^^^  if  they  consist  of  documents  in  possession  of  the  other  party, 
in  which  he  either  has  an  interest,  or  which  tend  to  prove  his  case,  and 
have  no  relation  to  the  case  of  the  other  party,  he  has  a  right  to  have 
them  produced,  and  he  may  file  a  bill  of  discovery,  in  order  to  aid  him 
in  law  or  in  equity,  to  exhibit  those  documents  in  evidence,  or  compel 
a  statement  of  those  facts.  But  does  it  not  rest  there  ?  Has  he  a  right, 
as  against  the  defendant,  to  discover  the  defendant's  case?  Does  any 
case  go  the  length  of  that?  Sometimes  the  cases  trench  very  much  on 
those  limits?  but  if  you  take  the  question  as  a  matter  of  principle,  nas 
a  man  a  right,  or  is  it  consistent  with  common  justice  that  he  should 
file  a  bill  to  discover  the  defendant's  case?  The  ground  on  which  he 
files  his  bill,  is  to  make  the  defendant  discover  what  is  material  to  his 
(the  plaintiff's)  case;  but  he  has  no  right  to  say  to  the  defendant.  Tell 
me  what  your  title  is — tell  me  what  your  case  it — tell  me  how  you  mean 
to  prove  it — tell  me  the  evidence  you  have  to  support  it — disclose  the 
documents  you  mean  to  make  use  of  in  support  of  it — tell  me  all  these 
things,  that  I  may  find  a  flaw  in  your  title.'  Surely  that  is  not  the 
principle  of  a  bill  of  discovery.  And  if  you  look  at  the  cases,  you 
will  find,  however  they  may  occasionally  trench  on  the  line  of  distinc- 
tion— you  will  find  that  is  the  great  line  of  distinction." 


Common  Law  Practice  Commissioners,  Second  Report,  55  (1853): 
"As  to  facts  within  the  knowledge  of  an  adverse  party,  the  Courts  of 
law  possess  no  power  of  compelling  discovery ;  except,  indeed,  that 
^^^  by  the  recent  change  [of  185 1]  in  the  law  each  party  may  be  called 
as  a  witness  [on  the  trial]  by  his  opponent;  but  it  is  obvious  that  this 
course  will  only  be  resorted  to  in  the  most  desperate  emergency.  It  can- 
not reasonably  be  expected  that  a  party  ignorant  of  what  his  adversary 
may  be  prepared  to  swear,  shall  put  so  adverse  and  interested  a  witness 
into  the  box,  without  having  had  any  opportunity  of  previous  interroga- 
tion. For  the  purpose  of  discovery,  previous  to  the  trial,  whether  of 
facts  or  of  documents,  the  party  desiring  is  has  now  no  alternative  but 
to  resort  to  a  court  of  equity.  We  have  no  hesitation  in  saying  that  this 
is  altogether  wrong.  We  assert  as  an  indisputable  proposition,  that 
every  Court  ought  to  possess  within  itself  the  means  of  administering 
complete  justice  within  the  scope  of  its  jurisdiction.  .  .  .  This  oppor- 
tunity for  examination  prior  to  the  trial  will  be  useful,  not  only  for  the 
purpose  of  discovering  facts  exclusively  in  the  knowledge  of  the  oppo- 


368 


PRECAUTIONARY    RULES. 


No.  387. 


site  party,  but  as  the  means  of  sparing  the  trouble  and  expense  of  pro- 
ducing evidence  of  facts  which  he  may  be  prepared  to  admit ;  while, 
on  the  other  hand,  it  will  tend  to  make  more  clearly  manifest  the  mat- 
ter3  which  are  alone  in  contest  between  the  parties.  In  some  cases,  such 
a  preliminary  discovery  may  even  altogether  obviate  the  necessity  of  any 
trial,  by  compelling  the  one  party  or  the  other  to  admit  facts  decisive  of 
the  case  upon  the  merits,  so  as  to  show  that  proceeding  to  trial  would 
be  a  mere  abuse  of  the  forms  of  justice.  A  power  of  preliminary  dis- 
covery would  likewise  tend  to  expose  the  motives  of  groundless  actions 
brought  for  vexation,  and  of  unfounded  defences  set  up  and  persisted 
in  for  delay.  It  would,  moreover,  have  a  most  wholesome  effect  in  pre- 
venting false  pleas  from  being  put  on  the  record ;  for  as  soon  as  the 
examination  of  the  party  had  made  manifest  the  falsehood  of  the  plea, 
a  judge  might  be  applied  to  to  disallow  the  pleading  at  the  expense  of 
the  party  pleading  it.  If  the  very  existence  of  such  a  power  had  not 
the  effect  of  preventing  the  necessity  of  its  exercise,  it  would  at  least 
aid  the  Court  in  extirpating  frivolous  and  improper  litigation.  We  pro- 
pose that  either  party  in  a  cause  shall  be  at  liberty  to  deliver  to  the 
opposite  party,  provided  such  party  would  be  liable  to  be  called  as  a  wit- 
ness, or  his  attorney,  written  questions  on  the  subjects  on  which  dis- 
covery is  sought ;  and  to  require  such  party,  within  a  time  to  be  fixed, 
to  answer  the  questions  in  writing  upon  oath,  sworn  and  filed  in  the 
same  manner  and  under  the  same  sanction,  in  case  of  falsehood,  as  an 
affidavit ;  and  that  the  party  omitting  to  answer  within  the  prescribed 
time  shall  be  subject  to  the  consequences  of  a  contempt  of  the  court. 
But  we  by  no  means  propose  to  confine  the  power  of  interrogating  such 
adverse  party  to  the  written  questions  above  referred  to.  We  think  that 
in  many  cases  an  opportunity  should  be  afforded  for  oral  examination. 
At  the  same  time,  care  must  be  taken  that  the  power  of  personal  exam- 
ination be  not  abused  by  being  made  a  means  of  vexation  and  oppres- 
sion, when  used  against  weak  or  timid  persons.  We  propose,  therefore, 
not  to  leave  it  at  the  option  of  a  party  to  demand  an  oral  examination, 
but  to  give  the  court,  or  a  judge,  discretion,  on  the  application  of  either 
party,  in  case  of  an  insufficient  answer  to  the  written  questions  before 
referred  to,  or  in  any  other  case  in  which  it  may  be  made  to  appear 
essential  to  justice,  to  direct  an  oral  examination  of  the  other  party 
before  either  a  judge  or  a  master  of  the  court."^ 


Statutes:     Illinois,  Rev.  St.  1874,  c.  51,  §6:     "Any  party  to  any 
civil  action,  suit  or  proceeding,  may  compel  any  adverse  party  or  per- 
son for  whose  benefit  such  action,  suit,  or  proceeding  is  brought, 
**"      instituted,  prosecuted,  or  defended,  to  testify  as  a  witness  at  the 
trial,  or  by  deposition,  taken  as  other  depositions  are  by  law  required. 


I — Pound,  C,  in  Ulrich  v.  McConaughey, 
63  Nebr.  lo,  88  N.  W.  150  (1901):  "The 
common  law  originally  was  very  strict  in 
confining  each  party  to  his  own  means  of 
proof,  and,  as  it  has  been  expressed,  re- 
garded   a    trial    as    a    cock    fight,    wherein 


he  won  whose  advocate  was  the  gamest 
bird  with  the  longest  spurs.  But  we  have 
come  to  take  a  more  liberal  view,  and 
have  done  away  with  most  of  those  fea- 
tures  which   gave   rise   to  that   reproach." 


No.  389.  V.      DISCOVERY    BEFORE    TRIAL.  369 

in  the  same  manner,  and  subject  to  the  same  rules,  as  other  witnesses." 
Massachusetts,  Rev.  L.   1902,  c.  173,  §§  35,  57-63   (quoted  post,  No. 

396). 

New  York,  C.  C.  P.  1877,  §  870 :  "The  deposition  of  a  party  to  an 
action  pending  in  a  court  of  record,  or  of  a  person  who  expects  to  be 
a  party  .  .  .  may  be  taken  at  his  own  instance  or  at  the  instance  of  an 
adverse  party  or  of  a  co-plaintiff  or  co-defendant  at  any  time  before 
the  trial." 


Mr.  Justice  Daly.  "Preparation  for  Trial,"  The  Brief,  II,  299 
(1900)  :  "In  preparing  for  the  trial  of  your  action,  it  may  be  neces- 
sary to  take  the  deposition  of  the  adverse  party  with  the  expecta- 
***  tion  of  having  to  use  it  as  evidence.  The  Code  contemplates  the 
use  of  the  deposition  upon  the  trial,  and  the  examination  is  not  allowed 
for  the  mere  purpose  of  enabling  the  applicant  to  prepare  for  trial.  The 
examination  is  in  every  case  of  very  great  benefit  to  the  party  applying 
for  it,  and  for  that  reason  is  almost  invariably  resisted  with  vigor,  the 
conflict  giving  rise  to  a  vast  amount  of  litigation,  producing  decisions 
not  always  easy  to  reconcile  and  not  always  adhered  to.  In  my  experi- 
ence no  remedy  has  been  more  warmly  contested,  and  it  is  hardly  pos- 
sible to-day  to  make  an  application  for  it  without  a  fatiguing  study  of  a 
vast  number  of  cases.  The  reason  for  this  is  due  to  the  resistance 
naturally  to  be  expected  to  an  assumed  inquisitorial  investigation,  which 
may  disclose  the  case  of  an  adversary  and  discover  its  weakness,  and 
to  the  disposition  of  the  Courts  to  limit  the  privilege  of  examination 
■for  fear  of  abuse.  The  remedy  first  made  its  appearance  in  our  practice 
with  the  Code  of  Procedvtre  in  the  middle  of  the  century  now  drawing 
to  a  close.  The  language  of  the  old  Code  'No  action  to  obtain  discovery 
under  oath  in  aid  of  the  prosecution  or  defense  of  another  action  shall 
be  allowed ;  nor  shall  any  examination  of  a  party  be  had  on  behalf  of 
the  adverse  party,  except  in  the  manner  prescribed  by  this  chapter,' 
led  the  Courts  at  first  toi  consider  the  examination  as  a  mere  substitute 
for  the  former  bill  of  discovery  and  thus,  logically,  in  administering 
the  remedy,  to  hold  that  parties  availing  themselves  of  it  were  bound  to 
conform  as  near  as  might  be  to  the  rules  and  practice  governing  bills 
of  discovery.  Under  the  present  Code,  in  which  the  examination  of  a 
party  before  trial,  at  the  instance  of  his  adversary,  the  examination 
of  a  witness  de  bene  esse  and  the  taking  of  depositions  for  the  perpetua- 
tion of  testimony  in  anticipated  litigations  are  all  grouped  in  one  article, 
it  is  held  that  the  proceeding  is  purely  statutory,  to  be  governed  by  the 
provisions  of  the  Code,  and  not  to  be  controlled  by  the  former  practice. 
This  clearing  away  of  former  restrictions  did  not,  however,  tend  to 
diminish  litigation  upon  the  subject,  and  there  is  yet  much  to  perplex 
the  practitioner  in  the  very  fine  distinctions  which  have  been  favored  by 
the  courts.  The  tendency  of  the  courts  is  not  yet  toward  liberality,  in 
permitting  examinations  of  parties  at  the  instance  of  their  adversaries, 
and  a  very  wide  discretion  is  exercised  in  determining  whether  the  facts 


370 


PRECAUTIONARY   RULES. 


No.  389. 


set  forth  in  the  appellant's  affidavit  show  that  the  testimony  is  material 
and  necessary.  A  perusal  of  the  statute  might  reasonably  lead  to  the 
conclusion  that  the  Legislature  intended  to  afford  a  very  broad  and 
general  remedy;  but  a  review^  of  the  great  array  of  decisions  upon  the 
article  would  lead  to  the  conviction  that  the  Courts,  in  the  conscientious 
discharge  of  duty,  have  made  a  deal  of  work  and  trouble  for  them- 
selves which  might  have  been  avoided,  without  special  injury,  by  a  less 
conservative  construction,  by  permitting  the  examination  except  where 
it  is  obviously  intended  to  annoy  and  harass  and  by  confining  the  exam- 
ination strictly  to  the  issues,  or  limiting  it  to  particular  matters  as  the 
statute  expressly  permits.  ...  It  is  interesting  to  note  that  the  Court 
of  last  resort  in  this  State  has  expressed  its  fear  of  latitude  leading  to 
abuse  with  respect  to  one  branch  of  the  subject  only,  namely,  that 
which  relates  to  the  examinations  before  action  brought  of  a  person 
who  is  expected  to  be  made  a  party  to  it.  .  .  .  If  the  examination  is 
allowed  by  the  Court  it  need  not  be  limited  to  the  affirmative  cause  of 
action  or  defense  of  the  party  desiring  the  examination,  but  may  be  a 
general  examination,  the  same  as  if  it  were  had  at  the  trial.  .  .  .  [The 
examination  has  been  refused]  where  there  is  no  proof  that  the  facts 
are  not  as  well  known  to  the  party  seeking  the  examination  as  to  the 
adversary  whom  he  wishes  to  examine ;  where  it  is  not  shown  that  an 
examination  of  the  adversary  could  not  be  had  at  the  trial  and  it  does 
not  appear  that  an  examination  before  trial  is  necessary  or  important; 
where  it  is  made  to  appear  that  the  examination  is  sought  merely  for 
the  purpose  of  annoyance  or  delay ;  where  the  information  sought  can 
be  obtained  from  records  or  documents;  where  it  cannot  be  ascertained 
on  what  issue  the  party  desires  the  examination  or  where  a  defendant 
sought  to  examine  a  plaintiff  before  service  of  a  complaint  in  order  to 
frame  an  answer;  where  it  is  not  alleged  that  the  facts  exist  which  are 
sought  to  be  proved  by  the  examination ;  and,  generally,  where  the 
Court  is  not  satisfied  that  the  examination  of  the  adversary  is  either 
material  or  necessary.  The  instances  under  this  head  are  too  numerous 
to  cite;  and  it  may  be  suggested  that  each  case  will  be  judged  upon  its 
own  facts  and  that  the  practitioner,  in  groping  his  way  through  the 
maze  of  adjudications  on  this  division  of  the  subject,  will  find  common 
sense  a  not  untrustworthy  guide. "^ 


RE  STRACHAN. 

L.  R.  [1895]  I  Ch.  439,  445. 

In  the  month  of  April,  1894,  a  petition  for  an  inquiry  as  to  the  sanity 

of  Horace   Ward   Strachan,   an   alleged   lunatic,    was   presented   by   his 

brother  James  Arthur  Strachan.     Affidavits  were  filed  in  support 

"^      of  the  petition,  and  an  order  for  an  inquiry  was  made;  but  on 

the  13th  of  June,  1894,  before  the  inquisition  was  concluded,  the  alleged 

lunatic  died,  and  thereupon  the  proceedings  in  Lunacy  came  to  an  end. 

I — Compare  the  authorities  cited  in   W.,   §    1856. 


No.  390.  V.      DISCOVERY    BEFORE    TRIAL.  371 

In  February  and  March,  1894,  the  alleged  lunatic  had  made  two  wills 
in  favour  of  Mrs.  Elizabeth  Sanford,  neither  of  which  contained  any 
appointment  of  executors.  After  his  death,  the  validity  of  these  wills 
was  disputed  by  his  brother  J.  A.  Strachan  on  the  ground  of  insanity, 
undue  influence,  and  defective  execution;  and,  in  July,  1894,  J.  A. 
Strachan  brought  an  action  in  the  Probate  Division  for  the  adminis- 
tration of  his  deceased  brother's  estate,  upon  the  footing  that  he  had 
died  intestate.  In  this  action,  to  which  Mrs.  Sanford  was  made  De- 
fendant, he  sought  to  have  it  declared  that  these  two  wills  had  been 
made  by  his  brother  when  insane,  and  v/ere  induced  by  her  undue  influ- 
ence acting  upon  his  brother  in  his  then  condition.  Mrs.  Sanford  coun- 
ter-claimed to  have  it  declared  that  the  two  wills  were  valid,  and  that 
probate  thereof  might  be  granted.  Notice  of  trial  was  given  on  the 
27th  of  October,  and  on  the  17th  of  November  the  Plaintiff  (J.  A. 
Strachan)  made  an  affidavit  of  documents,  in  which  he  claimed  privilege 
for  certain  documents  in  his  possession,  including  drafts  or  copies  of 
his  petition  in  Lunacy,  and  of  the  affidavits  filed  by  him  in  the  lunacy 
in  support  of  the  petition.  An  application  by  Mrs.  Sanford  in  the  Pro- 
bate acticHi  for  the  production  of  these  documents  by  the  Plaintiff  was 
refused  by  Sir  Francis  Jeune  on  the  19th  of  November,  1894.  .  .  .  The 
4th  paragraph  of  the  petition  was  as  follows :  "Your  petitioner  is  desir- 
ous of  inspecting  and  taking  copies  of  and  extracts  from  the  petition 
affidavits  and  other  proceedings  in  the  matter  of  the  supposed  lunatic 
in  order  that  she  may  ascertain  what  allegations  of  mental  incapacity 
are  intended  to  be  made  at  the  trial  of  the  said  Probate  action,  and  that 
she  may  have  an  opportunity  of  rebutting  them." 

LiNDLEY,  L.  J.:  "In  the  present  case,  if  inspection  is  allowed,  Mrs. 
Sanford  will  see  her  adversary's  hand,  which  she  cannot  do  without  the 
assistance  of  the  Court;  whilst,  if  inspection  is  refused,  the  Court  will 
not  confer  on  her  opponent  any  advantage,  which  he  has  not  already 
got.  Mrs.  Sanford  has  no  right  to  this  advantage,  and  I  see  no  reason 
why  she  should  have  it.  Her  own  petition  shews  that  she  does  not  want 
to  see  the  documents  in  order  to  support  her  own  case.  She  wants  to 
see  how  her  opponent  hopes  to  prove  his  case,  and  what  she  wants  to 
see  is  the  evidence  he  has  procured  to  prove  the  insanity  which  he  alleges 
and  she  disputes.  In  England  it  is  considered  contrary  to  the  interests 
of  Justice  to  compel  a  litigant  to  disclose  to  his  opponent  before  the 
trial  the  evidence  to  be  adduced  against  him.  It  is  considered  that  so 
to  do  would  give  undue  advantages  for  cross-examination  and  lead  to 
endless  side-issues,  and  would  enable  witnesses  to  be  tampered  with  and 
give  unfair  advantage  to  the  unscrupulous.  It  is  very  true  that  an 
honest  and  fair-dealing  litigant,  on  seeing  how  strong  a  case  his  oppo- 
nent had,  might  at  once  withdraw  from  further  litigation.  But  our  rules 
of  evidence  and  of  discovery  are  not  based  upon  the  theory  that  it  is 
advantageous  to  let  each  side  know  what  the  other  can  prove,  but  rather 
the  reverse. "- 

2 — 1887,  Post  V.    R   Co.,    144   Mass.    341,        do  not  compel  discovery  from  persons  who 
348,  II   N.  E.  540:  "It  is  clear  that  Courts        sustain    no    other    relation    to    the    contem- 


372  PRECAUTIONARY   RULES.  No.  391. 


Henry  Brougham^  Speech  on  the  Courts  of  Common  Law  (Feb.  7, 
1828;  Hans.  Pari.   Deb.,  26.  ser.,   §Vni,  188)  :     "Whatever  brings  the 
parties  to  their  senses  as  soon  as  possible,  especially  by  giving 
"  each  a  clear  view  of  his  chance  of  success  or  failure,  and,  above 

all  things,  making  him  well  acquainted  with  his  adversary's  case  at 
(the  earliest  possible  moment,  will  always  be  for  the  interests  of  justice, 
of  the  parties  themselves,  and  indeed,  of  all  but  the  practitioners.  It 
is  the  practitioners  generally,  that  determine  how  the  matter  shall  pro- 
ceed, and  it  may  be  imagined  that  their  own  interests  are  not  the 
last  attended  to.  The  seeming  interest  of  two  parties  disposed  to  be 
litigious,  in  many  cases  appears  to  be  different  from  the  interests  of 
justice,  although  their  real  interest,  if  strictly  examined,  will  not  unfre- 
quently  be  found  to  be  the  same.  Now,  justice  is  embarrassed  by  the 
disingenuousness  of  conflicting  parties;  justice  wants  the  cases  of  both 
to  be  fully  and  early  stated;  but  both  parties  take  care  to  inform  each 
other  as  little  as  possible,  and  as  late  as  possible,  of  their  respective 
merits.  One  tells  as  much  of  his  case  as  he  thinks  good  for  the  fur- 
therance of  his  claim,  and  the  frustration  of  the  enemy's — so  does  the 
other,  only  as  much  of  his  answer  as  may  help  him,  without  aiding  his 
adversary;  and  the  judge  is  oftentimes  left  to  guess  at  the  truth  in  the 
trick  and  conflict  of  the  two.  The  interest  of  the  Court  of  Justice  being 
to  make  both  parties  come  out  with  the  whole  of  their  case  as  early  as 
possible,  the  law  should  never  lend  itself  to  their  concealments.  This 
remark  extends  to  the  proof  as  well  as  the  statement  of  the  case ;  an 
intimation  of  what  the  evidence  is  may  often  stop  a  cause  at  once.  In 
Scotland,  the  law  in  this  respect  is  better  than  ours,  for  no  man  can 
produce  a  written  instrument  on  trial  without  having  previously  shown 
it  to  his  adversary.  For  want  of  this  salutary  rule  I  have  often  seen 
the  most  useless  litigation  protracted  for  the  sole  benefit  of  practitioners. 
I  was  myself  lately  engaged  in  a  cause,  the  circumstances  of  which  will 
give  the  House  an  idea  of  the  mischief.  I  was  instructed  not  to  show 
a  certain  receipt  to  the  opposite  party,  as  my  client,  the  defendant,  meant 
to  nonsuit  his  adversary  in  great  style,  as  he  would  call  it.  Well,  the 
plaintiff,  (an  executor),  stated  his  case,  and  called  his  witnesses  to  prove 
the  debt.  I  did  not  take  the  trouble  to  cross-examine,  which  would 
have  been  quite  unnecessary.  Equally  so  was  it  to  address  the  jury.  I 
acknowledged  the  truth  of  all  that  had  been  sworn  on  the  other  side, 
but  added  that  it  was  all  useless,  as  I  happened  to  have  a  receipt  for  the 
money,  which  had  been  paid  to  the  testator.  This,  of  course,  put  an  end 
to  the  case.  The  sum  sought  to  be  recovered  did  not  exceed  twenty 
povmds,  and  the  expenses  could  not  have  been  less  than  a  hundred." 

plated    litigntion,    or    to    the    subject   of   the  formation    of  any  causes   of  action   he   may 
suit,    than    that    of   witness;    and    it    is    also  have    against    other    persons    than    the    de- 
clear    that   a    bill    for    discovery    cannot    be  fendants." 
used    to    enable    a    plaintiff    to    fish    for   in- 


No.  392.  V.      DISCOVERY   BEFORE   TRIAL.  373 

BOLTON  V.  LIVERPOOL  (1833). 
/  Myl.  &  K.  88,  pi. 

The  plaintiffs,  who  were  merchants  and  copartners  in  Liverpool,  were 
defendants  in  an  action,  brought  by  the  corporation,  for  the  recovery 
of  certain  dues  levied  by  the  corporation  upon  the  traders  of  that 
'**'"'  town.  The  bill  was  filed  for  the  purpose  of  obtaining  a  discovery 
from  the  corporation  in  aid  of  the  plaintiff's  defence  to  the  action  at 
law.  The  bill  among  other  things  charged  that  divers  cases  had  been 
lately  submitted  to  counsel,  for  their  opinion,  touching  the  right  of  the 
corporation  to  receive  the  tolls  and  duties,  and  from  which,  if  pro- 
duced, it  would  appear  that  the  corporation  had  no  such  right,  and  that 
all  such  cases  were  then  in  the  possession  or  power  of  the  defendants; 
and  it  further  charged  that  the  defendants  had  in  their  possession  or 
power  divers  charters,  grants,  deeds,  books,  accounts,  letters,  copies 
of  and  extracts  from  letters,  cases,  written  statements,  tables  or  lists 
of  town  dues,  tolls  or  duties,  bills,  informations,  pleas,  answers,  memo- 
randums, papers,  and  writings,  relating  to  the  matters  contained  in  the 
bill ;  and  by  which,  if  produced,  the  truth  of  those  matters  would  ap- 
pear. 

The  defendants  admitted  that  they  had  then,  in  their  possession,  cer- 
tain grants,  deeds,  documents,  and  papers,  relating  to  the  matters  afore- 
said, and  that  they  had  in  the  third  schedule  to  their  said  answer,  and 
which  they  prayed  might  be  taken  as  part  thereof,  set  forth  a  list  of 
such  grants,  deeds,  documents  and  papers.  But  the  defendants  said 
that  many  of  such  grants,  deeds,  and  documents  were  the  title  deeds  and 
documents  evidencing  and  showing  the  title  of  the  corporation  to  the  town 
and  lordship  of  Liverpool,  and  to  the  town  dues  and  customs  aforesaid; 
and  that  many  of  such  documents  and  papers  were  copies  of  accounts 
from  public  offices,  and  that  they  had  in  the  said  schedule  particularized 
and  distinguished  which  of  the  said  grants,  deeds,  and  documents  were 
the  title  deeds  and  documents  evidencing  the  title  of  the  corporation  to 
the  town  and  lordship  of  Liverpool,  and  town  dues  and  customs  afore- 
said, and  which  of  the  said  documents  and  papers  were  copies  of  ac- 
counts from  public  oflfices ;  and  the  defendants  submitted  that  they 
ought  not  to  be  compelled  to  produce  such  grants,  deeds,  documents,  and 
papers. 

Brougham^  L.  C. :  "I  take  the  principle  to  be  this:  A  party  has  a 
right  to  the  production  of  deeds  sustaining  his  own  title  affirmatively, 
but  not  of  those  which  are  not  immediately  connected  with  the  sup- 
port of  his  own  title  and  which  form  part  of  his  adversary's.  He 
cannot  call  for  those  which,  instead  of  supporting  his  title,  defeat  it  by 
entitling  his  adversary.  Those  under  which  1)oth  claim  he  may  have, 
or  those  under  which  he  alone  claims.  .  .  .  The  plaintiff  here  does  not 
claim  anything  positively  or  affirmatively  under  the  documents  in  ques- 
tion ;  he  only  defends  himself  against  the  claims  of  the  corporation,  and 
suggests  that  the  documents  evidencing  their  title  may  aid  his  defence. 


374 


PRECAUTIONARY    RULEb. 


iNo.  392. 


How?  By  proving  his  title,  he  says.  But  how  can  those  documents 
prove  his  title?  Only  by  disclosing  some  defect  in  that  of  the  corpora- 
tion. .  .  .  He  rests  on  the  right  which  he  has  in  common  with  all  man- 
kind to  be  exempt  from  dues  and  customs ;  and  he  says,  'Prove  me 
liable  if  you  can'.  The  corporation  have  certain  documents  which  they 
say  prove  this  liability.  He  cannot  call  for  these  documents  merely 
because  they  may  upon  inspection  be  found  not  to  prove  his  liability, 
and  so  help  him  and  hurt  his  adversary  whose  title  they  are." 


393 


Wm.  Tidd,  Practice,  pth  ed.,  I,  586,  (1828) :  "Oyer  of  deeds,  etc.,  is 
demandable  by  the  defendant  or  by  the  plaintiff.  H  the  plaintiff  in  his 
declaration  neccessarily  make  a  profert  in  curia  of  any  deed,  writ- 
ing, letters  of  administration,  or  the  like,  the  defendant  may  pray 
oyer  of  the  deed,  etc.,  and  must  have  a  copy  delivered  to  him,  if  de- 
manded, paying  for  the  same  at  the  rate  of  fourpence  per  sheet.  And  a 
defendant  who  prays  oyer  of  a  deed  is  entitled  to  a  copy  of  the  attesta- 
tion and  names  of  the  witnesses,  as  well  as  of  every  other  part  of  the 
deed.  So  likewise,  if  the  defendant  in  his  plea  makes  a  necessary  pro- 
fert in  curia  of  any  deed,  etc.,  the  plaintiff  may  pray  oyer,  and  shall 
have  a  copy  at  the  like  rate.  And  the  party  of  whom  oyer  is  demanded 
is  bound  to  carry  the  deed  to  the  adverse  party.  .  .  .  Formerly  all  de- 
mands of  oyer  were  made  in  court,  where  the  deed  is  by  intendment  of 
law  when  it  is  pleaded  with  a  profert  in  curia;  and  therefore,  when 
oyer  is  craved,  it  is  supposed  to  be  of  the  Court,  and  not  of  the  party; 
and  the  words  ei  Icgitur  in  ho'c  verba,  etc.,  are  the  act  of  the  Court. 
In  practice,  however,  oyer  is  now  usually  demanded  and  granted  by 
the  attorneys." 


GROENVELT  v.  BURRELL  (1698). 
I  Ld.  Raym.  252. 
The  plaintiff  was  refused  an  inspection  and  copy  of  the  records  of 
the  college  of  physicians,  in  an  action  against  one  of  them  for  false 
394  imprisonment,  Per  Curiam:  "This  record  may  be  pleaded  with- 
out a  profert  in  curia,  and  therefore  no  oyer  can  be  prayed  for  it,  and 
therefore  the  defendants  shall  not  be  bound  to  give  a  copy,  for  it  would 
be  in  effect  to  discover  their  evidence.  And  the  plaintiff  has  no  right 
in  this  record,  therefore  this  case  differs  from,  the  case  of  the  public 
books  of  a  corporation,  for  there  the  party  has  an  interest.  In  the 
same  manner,  where  there  is  a  dispute  between  a  lord  and  a  copyholder, 
the  copyholder  shall  see  the  rolls,  because  he  has  an  interest  in  them." 


Common  Law  Practice  Commissioners,  Third  Report,  45  (1831): 
"By  law,  no  profert  is  required  to  be  made  and  consequently  no  oyer 
can  be  demanded  of  any  instrument,  except  private  deeds,  letters 
testamentary,  and  letters  of  administration.  If  there  are  other 
cases,  they  are  unfrequent  and  obscure.     The  following  are  consequently 


895 


No.  396.  V.   DISCOVERY  BEFORE  TRIAL.  375 

excluded:  records  and  public  writings  of  whatever  description,  private 
writings  under  seal  but  not  falling  within  the  legal  definition  of  deeds 
(for  example,  a  sealed  will  or  a  sealed  award),  and  private  writings 
not  under  seal  of  whatever  description;  and  even  of  private  deeds  a 
numerous  class  is  excepted,  viz.,  such  as  take  effect  either  by  livery  of 
seisin  or  by  operation  of  the  statute  of  uses.  .  .  ,  The  whole  of  this 
practice  appears  to  be  too  strict,  too  intricate,  too  prolix,  and  in  some 
parts  of  it  obscure  and  unsettled.  It  is  strongly  calculated  to  give  rise 
to  technical  difficulty  and  formal  objection,  and  tends  in  some  other 
respects  also  to  produce  unnecessary  delay  and  expense.  The  truth  is 
that  the  law  of  profert  and  oyer  was  originally  devised  in  reference  to 
a  state  of  things  that  no  longer  exists ;  being  altogether  founded  on 
that  method,  now  for  so  many  ages  obsolete,  of  oral  pleading  between 
litigants  actually  confronting  each  other  in  open  court.  .  .  .  The  present 
practice  of  profert  and  oyer,  though  in  its  present  form  chargeable  with 
many  defects,  is  in  its  principle  of  the  highest  importance.  It  is  mani- 
festly essential  to  the  interests  of  justice  that  a  party  against  whom 
his  own  written  instrument  or  the  instrument  of  another  person  is 
pleaded  should  have  the  means  of  inspection,  and,  if  necessary,  of  pro- 
curing a  copy  before  he  is  called  upon  to  answer.  He  may  wish  to 
ascertain  its  genuineness,  and,  if  genuine,  whether  it  has  sustained  any 
material  alteration  since  it  was  executed.  He  may  wish  to  know  the 
names  of  the  subscribing  witnesses  and  to  ascertain  from  them  what 
testimony  they  are  prepared  to  give  as  to  the  circumstances  under 
which  it  was  executed.  He  may  propose  to  found  his  defence  upon 
some  parts  of  the  instrument  which  his  adversary  has  not  chosen  to 
set  forth  and  which  may  either  show  its  invalidity  in  point  of  law  or 
provide  him  with  an  answer  in  point  of  fact.  .  .  .  We  can  see  no  good 
reason  why,  in  every  case  in  which  profert  would  be  required  of  a 
bond  or  other  deed,  it  should  not  also  be  made  of  any  other  instrument 
of  whatever  description,  which  is  either  alleged  to  be  or  which  may  be 
presumed  to  be  in  writing.  Such  an  alteration  of  the  law  would  pre- 
vent the  delay,  expense,  and  uncertainty  which  attends  an  application 
to  the  Court  or  a  judge,  and  place  the  whole  practice  on  this  subject 
on  a  more  simple  and  uniform  as  well  as  a  more  equitable  footing." 


Statutes.  England,  1851,  St.  14  &  15  Vict.  c.  99,  §6:  Upon  action 
pending,  any  judge  may  on  application  by  either  party  "compel  the  op- 
posing party  to  allow  the  party  making  the  application  to  inspect 
all  documents  in  the  custody  or  under  the  control  of  such  oppo- 
site party  relating  to  such  action  or  other  legal  proceeding,  and,  if 
necessary,  to  take  examined  copies  of  the  same  or  procure  the  same 
to  be  duly  stamped,  in  all  cases  in  which  previous  to  the  passing  of  this 
act  a  discovery  might  have  been  obtained  by  filing  a  bill  or  by  any 
other  proceeding  in  a  court  of  equity".     1854.  St.  17  &  18  Vict.  c.  125, 


376  PRECAUTIONARY    RULES.  No.  396. 

§50:  "Upon  the  application  of  either  party  to  any  cause  or  other  civil 
proceeding  in  any  of  the  superior  courts  upon  an  afhdavit  by  such 
party  of  his  belief  that  any  document  to  the  production  of  which  he  is 
entitled  for  the  purpose  of  discovery  or  otherwise  is  in  the  possession 
or  power  of  the  opposite  party,  it  shall  be  lawful  for  the  court  or  judge 
to  order"  that  the  opponent  answer  as  to  such  custody  and  as  to  the 
objection  if  any  to  production;  and  then  "the  Court  or  judge  may 
make  such  further  order  thereon  as  shall  be  just." 

Illinois,  Rev.  St.  1874,  c.  51,  §9:  Courts  are  empowered  "in  any 
action  pending  before  them,  upon  motion,  and  good  and  sufficient  cause 
shown,  and  reasonable  notice  thereof  given,  to  require  the  parties  or 
either  of  them  to  produce  books  or  writings  in  their  possession  or 
power  which  contain  evidence  pertinent  to  the  issue".  lb.  c.  no,  §20: 
"It  shall  not  be  necessary  in  any  pleading  to  make  profert  of  the  instru- 
ment alleged ;  but  in  any  action  or  defence  upon  an  instrument  in 
writing,  whether  under  seal  or  not,  if  the  same  is  not  lost  or  destroyed, 
the  opposite  party  may  have  oyer  thereof  and  proceed  thereon  in  the 
same  manner  as  if  profert  had  been  properly  made  according  to  the 
common  law." 

Kansas,  Gen.  St.  1897,  c.  95,  §  380 :  Either  party  may  demand  of  the 
opponent  "an  inspection  and  copy,  or  permission  to  take  a  copy,  of  a 
book  or  paper  or  document  in  his  possession  or  under  his  control  con- 
taining evidence  relating  to  the  merits  of  the  action  or  defense  therein" ; 
the  demand  to  be  written  and  to  specify  particulars ;  on  refusal  within 
four  days,  the  Court  may  on  motion  and  notice  order  such  inspection 
or  copy,  and  on  failure  to  comply  with  the  order,  may  exclude  the  docu- 
ment or  direct  it  to  be  presumed  to  be  as  alleged".  lb.  §  381 :  Either 
party,  if  required,  shall  deliver  to  the  other  "a  copy  of  any  deed  instru- 
ment or  other  writing  whereon  his  action  or  defense  is  founded  or 
which  he  intends  to  offer  in  evidence  at  the  trial;  on  refusal,  the  party's 
original  shall  be  excluded  at  the  trial." 

Massachusetts,  Rev.  L.  1902,  c.  173,  §  6 :  "Written  instruments"  shall 
be  declared  on,  except  insurance  policies,  by  setting  out  a  copy  or  the 
part  relied  on,  or  the  legal  effect ;  "if  the  whole  contract  is  not  set  out, 
a  copy  of  the  original,  as  the  Court  may  require,  shall  be  filed  upon 
motion  of  the  defendant,"  and  the  copy  may  be  made  a  part  of  the 
record  as  if  oyer  had  been  granted ;  "no  profert  or  excuse  therefor  need 
be  inserted  in  a  declaration".  lb.  §  35 :  "No  party  shall  be  required 
[in  his  pleading]  to  state  evidence,  or  to  disclose  the  means  by  which 
he  intends  to  prove  his  cause".  lb.  §§  57-63 :  Interrogatories  may  be 
filed,  after  entry  of  action  or  answer,  and  before  a  trial  on  the  merits, 
"for  the  discovery  of  facts  and  documents  material  to  the  support  or 
defence  of  the  action,"  to  be  answered  on  oath  by  the  adverse  party; 
documents  containing  "matters  not  pertinent  to  the  subject  of  the  ac- 
tion" may  be  protected  from  inspection ;  no  party  shall  be  obliged  "to 
disclose  his  title  to  any  property  the  title  whereof  is  not  material  to  the 
trial  of  the  action  in  the  course  of  which  he  is  interrogated,  or  to  dis- 


No.  397.  V.      DISCOVERY    BEFORE    TRIAL.  377 

close  the  names  of  the  witnesses  by  whom  or  the  manner  in  which  he 
proposes  to  prove  his  own  case." 

New  York,  C.  C.  P.  1877,  §803:  "A  court  of  record,  other  than  a 
justice's  court  in  a  city,  has  power  to  compel  a  party  to  an  action 
pending  therein  to  produce  and  discover,  or  to  give  to  the  other  party 
an  inspection  and  copy  or  permission  to  take  a  copy  of  a  book  document 
or  other  paper  in  his  possession  or  under  his  control  relating  to  the 
merits  of  the  action  or  of  the  defence  therein."  lb.  §§  804-809,  1914: 
Proceedings  regulated ;  "the  general  rules  of  practice  must  prescribe 
the  cases  in  which  a  discovery  or  inspection  may  be  so  compelled," 
where  not  otherwise  prescribed  in  this  act ;  upon  refusal  to  comply, 
a  Court  may  dismiss  a  complaint  or  strike  out  an  answer,  etc.,  or  bar  a 
particular  claim  or  defence,  or,  for  refusal  to  allow  inspection  and 
copy,  exclude  the  document  or  punish  for  contempt  or  both.  1895. 
Supreme  Court  Rules,  Nos.  14-17:  Applications  for  production  under 
C.  C.  P.  §804,  supra,  may  be  made  as  follows:  i,  by  the  plaintiff,  for 
documents  "which  may  be  necessary  to  enable  the  plaintiff  to  frame  his 
complaint  or  to  answer  any  pleading  of  the  defendant" ;  2,  by  the  de- 
fendant, for  documents  "which  may  be  necessary  to  enable  the  defend- 
ant to  answer  any  pleading  of  the  plaintiff" ;  3,  by  either  party,  on  a 
showing  that  the  document  "is  material  to  the  decision  of  the  action  or 
special  proceeding  or  some  motion  or  application  therein,  or  is  com- 
petent evidence  in  the  case  or  an  inspection  thereof  is  necessary  to 
enable  the  party  to  prepare  for  trial." 

United  States,  St.  1789,  c.  20,  §15,  Rev.  St.  1878,  c.  12,  §724:  In 
trials  at  law,  the  U.  S.  courts  may  on  motion  require  the  parties  "to 
produce  books  or  writings  in  their  possession  or  power,  which  contain 
evidence  pertinent  to  the  issue,  in  cases  and  under  circumstances  where 
they  might  be  compelled  to  produce  the  same  by  the  ordinary  rules  of 
proceeding  in  chancery";  on  failure  to  produce,  judgment  of  nonsuit 
or  default  may  be  given. ^ 


REYNOLDS  v.  BURGESS  SULPHITE  FIBRE  CO.    (1902). 

71  N.  H.  332,  51  At  I.  107  s. 

Action  by  Elizabeth  Reynolds,  administratrix,  against  the  Burgess 
Sulphite  Fibre  Company.  .  .  .  Bill  in  equity.  The  bill  alleges  that  the 
plaintiff  has  commenced  an  action  at  law  against  the  defendants 
to  recover  damages  for  negligently  causing  the  death  of  the 
plaintiff's  intestate  by  furnishing  him  for  use  in  his  employment  im- 
proper, unsuitable,  and  dangerous  machinery;  that  on  April  9,  1899, 
while  the  intestate  was  in  the  employ  of  the  defendants,  he  was  killed 
by  falling  against  the  governor  of  an  engine ;  that  the  engine  gave 
indications,  by  an  unusual  noise,  that  it  was  in  a  defective  condition, 

1 — Compare   the   authorities  cited  in   W.,  §§    1858,    1859. 


376 


PRECAUTIONARY    RULES. 


No.  397. 


and,  shortly  afterward  the  strap  on  its  connecting  rod  broke,  and  caused 
the  connecting  rod  to  break  through  the  outer  casing  with  a  loud  crash, 
and  thereby  caused  the  intestate's  fatal  fall ;  that  the  broken  pieces  of  the 
strap  are  in  the  defendants'  possession;  that,  to  properly  prepare  the 
plaintiff's  action  at  law  for  trial,  it  is  necessary  that  these  pieces  should 
be  examined  by  the  plaintiff's  attorneys,  and  also  by  competent  persons, 
with  a  view  of  testifying;  and  that  the  defendants,  though  requested, 
have  refused  to  permit  such  examination.  The  prayer  is  for  a  discovery 
of  the  pieces  of  the  broken  strap,  and  for  an  inspection  of  the  same  by 
the  plaintiff's  attorneys  and  such  other  persons  as  she  may  desire.  The 
defendants  filed  a  demurrer,  which  was  sustained  pro  forma,  subject  to 
the  plaintiff's  exception. 

Chase,  J. :  "Unless  the  eqttitable  remedy  of  discovery  has  been  super- 
seded by  the  provision  of  some  plain,  adequate,  and  complete  remedy  at 
law,  or  is  not  applicable  to  a  case  of  tort  like  that  alleged  in  the  plain- 
tiff's action  at  law, — points  that  are  hereinafter  considered, — it  is  certain 
that  the  defendants,  through  their  officers  and  agents,  might  be  com- 
pelled in  a  suit  like  the  present  one  to  discover  the  form  in  which  the 
strap  was  constructed,  the  character  of  the  workmanship  by  which  and 
the  materials  from  which  it  was  made ;  in  short,  all  the  facts  within 
their  knowledge,  information,  or  belief  tending  to  show  that  it  was 
defective.  If  they  had  in  their  possession  a  plan  of  the  strap  or  of  the 
broken  pieces,  they  might  be  compelled  to  produce  it  for  examination 
by  the  plaintiff.  Why,  then,  may  they  not  be  compelled  to  produce  the 
broken  pieces  themselves?  (i)  Two  reasons  are  suggested:  One — pos- 
itive, and,  if  well  founded,  substantial — that  the  defendants'  right  to 
possess  and  control  the  property,  growing  out  of  their  ownership  of  it, 
cannot  be  infringed  in  this  way;  and  the  other — negative,  and  not  ap- 
plying to  the  merits  of  the  question — that  there  is  no  precedent  for  a 
discovery  and  inspection  of  such  property.  It  must  be  admitted  that 
the  defendants'  right  of  property  in  the  broken  strap  will  be  interfered 
with  to  some  extent  if  they  are  required  to  produce  it,  and  allow  the 
plaintiff  and  others  to  examine  it.  But  such  interference  will  not  differ 
in  kind  or  degree  from  that  which  occurs  when  a  party  is  required  to 
produce  his  letters,  deeds,  plans,  other  documents,  or  books  for  inspec- 
tion. The  rights  of  the  defendants  arising  from  the  ownership  of  the 
strap  are  no  more  sacred  than  would  be  their  rights  arising  from  the 
ownership  of  a  plan  of  the  strap,  if  they  had  one.  The  infringement 
of  property  rights  in  such  cases  is  justified  upon  the  ground  that  it  is 
necessary  to  the  administration  of  justice.  Such  necessity  is  alleged 
by  the  plaintiff  and  admitted  by  the  defendants.  It  is  apparent  that  an 
examination  of  the  strap  will  afford  a  better  means  of  ascertaining  the 
truth  in  respect  to  its  suitableness  or  unsuitableness  for  the  office  it  was 
to  perform  than  any  possible  description  or  plan  of  it  could  afford, 
and  the  necessity  for  ah  inspection  of  it  is  correspondingly  greater  than 
the  necessity  for  an  oral  description  or  a  plan.  .  .  .  (2)  The  defendants' 
second  objection  is  because  the  discovery  and  inspection  are  sought  for 


No.    397.  V.      DISCOVERY    BEFORE   TRIAL.  '  379 

the  purpose  of  having  the  broken  strap  examined  by  persons  with  a 
view  of  enabhng  them  to  testify  as  experts  in  the  action  at  law.  This 
objection  must  also  be  overruled.  It  is  evident  that  expert  testimony 
may  be  competent  upon  the  issue  to  be  tried,  whether  it  relate  to  the 
form  of  the  strap,  the  manner  of  its  construction,  or  the  character  of 
the  materials  from  which  it  was  made.  The  defendants  have  ample 
opportunity  to  procure  such  testimony.  Justice  requires  that  the  plain- 
tiff shall  also  have  an  opportunity  to  have  the  strap  examined  by  per- 
sons in  whose  skill  and  scientific  knowledge  she  has  confidence.  There 
cannot  be  a  fair  trial  of  the  case  unless  such  opportunity  is  given  to  the 
plaintiff.  Indeed,  it  may  be  that  she  cannot  establish  her  right — if  she 
have  one — without  having  the  opportunity.  .  .  .  (3)  The  defendants 
place  much  reliance  upon  their  third  point,  viz.,  that  the  equitable  rem- 
edy for  discovery  cannot  be  invoked  in  aid  of  an  action  at  law  for  a 
personal  tort.  They  do  not  question,  and,  in  view  of  the  authorities, 
cannot  question,  the  proposition  that  discovery  may  be  had  in  aid  of 
actions  of  tort  relating  to  property,  such  as  trover,  detinue,  trespass, 
waste,  etc.  But  they  say  that  a  defendant  cannot  be  called  upon  to 
implicate  himself  directly  or  indirectly  in  a  personal  tort,  because  it 
would  tend  to  show  moral  turpitude,  and  so  is  inconsistent  with  prin- 
ciples of  natural  justice.  ...  If  the  absence  of  authorities  is  entitled 
to  any  weight,  it  is,  under  the  circumstances,  very  slight.  Cases  for 
personal  torts  arising  from  the  action  of  the  defendant, — wilful  torts, 
so  to  speak, — in  which  the  defendant  could  make  discovery  witiiout 
incriminating  himself,  must,  from  the  nature  of  the  case,  be  very  rare. 
It  is  possible  that  there  have  been  none  excepting  Macaulay  v.  Shack- 
ell,  and  cases  of  like  nature  that  have  been  decided  in  accordance  there- 
with without  again  raising  the  question.  Cases  for  negligence  were  not 
common  prior  to  the  middle  of  the  last  century.  The  use  of  steam  and 
electricity,  and  the  commercial  activity  consequent  thereon,  have  im- 
mensely multiplied  cases  of  this  kind.  Lord  Campbell's  act  for  giving 
compensation  to  the  families  of  persons  killed  by  the  negligence  of 
others  was  enacted  in  1846.  Eight  years  later  a  procedure  bill  was 
passed,  largely  through  the  agency  of  Lord  Campbell  (17  &  18  Vict. 
c.  125),  by  which,  among  other  things,  it  was  provided  that  either  party 
to  a  civil  action  in  the  superior  courts  'shall  be  at  liberty  to  apply  to 
the  court  or  judge  for  a  rule  or  order  for  the  inspection  by  the  jury, 
or  by  himself,  or  by  his  witnesses  of  any  real  or  personal  property,  the 
inspection  of  which  may  be  material  to  the  proper  determination  of  the 
question  in  dispute.'  ...  In  passing,  it  may  be  remarked  that  if  the 
act  and  the  reason  of  its  enactment  do  not  show  that  its  author  under- 
stood that  courts  of  equity  had  jurisdiction  to  order  an  inspection  of 
real  or  personal  property  when  such  inspection  was  material  to  the 
proper  determination  of  an  issue,  it  certainly  shows  that  he  felt  there 
was  a  necessity  for  such  inspection  in  the  administration  of  justice. 
The  act  relieved  parties  from  the  necessity  of  resorting  to  equity  for 
discovery,    and    reasonably   accounts   for   the   absence,   in    England,   of 


380 


DISCOVERY   BEFORE   TRIAL. 


No.  397. 


bill  of  discovery  in  aid  of  actions  at  law  for  negligence  since  that  time. 
...  If  Macaulay  v.  Shackell  and  Wilmot  v.  Maccabe  are  not  author- 
ities in  favor  of  the  maintenance  of  the  plaintiff's  bill,  the  general  prin- 
ciples governing  the  remedy  of  discovery  certainly  justify  its  mainte- 
nance. The  case  may  be  a  new  case  in  specie,  so  far  as  discovery  is 
concerned,  but  it  belongs  to  a  class  to  which  the  remedy  of  discovery 
is  applicable."^ 

I — Compare  the  authorities  cited  in  W.,  §  1862;  and  No.  461,  post, 


No.  398.  BOOK  1,  PART  II.  381 


TITLE  V. 

SIMPLIFICATIVE  RULES. 

General  Nature  of  these  Rules;  Undue  Confusion  of  Issues, 
AND  Unfair  Prejudice^  as  Grounds  for  Exclusion. ^  "The  peculiar 
mark  of  the  ensuing  group  of  rules  is  that  in  their  operation  they 
^"^  set  aside  or  exclude,  either  conditionally  or  absolutely,  certain 
kinds  of  evidence  (otherwise  admissible  so  far  as  Relevancy  is  con- 
cerned) which  are  found  to  have  an  improper  effect  by  obstructing 
or  confusing  rather  than  aiding  or  facilitating  the  process  of  ascertain- 
ing the  truth.  They  may  be  termed  Simplificative  rules,  with  reference 
to  their  mode  of  operation,  in  contrast  to  the  other  rules  of  Auxiliary 
Probative  Policy.  These  Simplificative  rules  treat  the  danger  or  in- 
convenience of  the  evidence  as  ineradicable  by  such  methods  as  those 
of  the  foregoing  rules,  and  therefore  resort  to  the  extreme  measure  of 
eliminating  entirely  the  evidence  supposed  to  be  tainted  with  the  ob- 
jectionable disadvantage. 

"As  to  the  qualities  or  elements  that  constitute  the  objectionable 
features  and  furnish  the  grounds  for  exclusion,  they  lie  in  some  indirect 
and  disadvantageous  probative  effects  found  in  experience  to  be  pro- 
duced by  the  use  of  certain  kinds  of  evidence.  These  disadvantageous 
effects  may  be  broadly  summarized  under  two  heads,  namely.  Undue 
Confusion  and  Unfair  Prejudice,  (a)  If  the  use  of  certain  evidential 
material  tends  to  produce  undue  confusion  in  the  minds  of  the  tribunal 
— t.  e.  the  jurors — ,  by  diverting  their  attention  from  the  real  issue  and 
fixing  it  upon  a  trivial  or  minor  matter,  or  by  making  the  controversy 
so  intricate  that  the  disentanglement  of  it  becomes  difficult,  the  evidence 
tends  to  the  suppression  of  the  truth  and  not  to  its  discovery;  and  there 
is  good  ground  for  excluding  such  evidence,  unless  it  is  so  intimately 
connected  with  the  main  issue  that  its  consideration  is  inevitable,  (b) 
So  also,  if  certain  evidential  material,  having  a  legitimate  probative 
value,  tends  nevertheless  to  produce  also,  over  and  above  its  legitimate 
effect,  an  unfair  prejudice  to  the  opponent  or  by  virtue  of  the  per- 
sonality of  the  witness  tends  to  receive  an  excessive  weight  in  the 
minds  of  the  tribunal,  there  is  good  ground  for  excluding  such  evi- 
dence, unless  it  is  indispensable  for  its  legitimate  purpose. 

"The  foregoing  motives,  as  might  be  expected,  do  not  always  operate 
distinctly  and  precisely  in  the  shape  of  rules  deduced  directly  and  solely 
from  one  or  the  other  motive.  These  broad  considerations  of  policy 
may  be  plainly  enough  seen  in  the  utterances  of  the  judges,  and  an 
appreciation  of  them  is  indispensable  to  an  understanding  of  the  rules. 


382  SIMPLIFICATIVE  RULES.  No.  398. 

Yet  the  resultant  concrete  rules  may  be  due  in  part  to  the  one  and  in 
part  to  the  other  motive,  or  one  of  these  motives  may,  though  domi- 
nant, be  attended  by  subordinate  motives  of  some  other  kind."^ 


SUB-TITLE  I. 

ORDER  OF  INTRODUCING  EVIDENCE. 

RUCKER  V.  EDDINGS   (1841). 

y  Mo.  115,  118. 

Scott,  J. :  "The  law  has  entrusted  Courts  vi^ith  a  discretion  in  al- 
lowing the  parties  to  a  cause  to  obviate  the  effects  of  inadvertence  by  the 
introduction  of  testimony  out  of  its  order.  This  discretion  is  to  be 
**""  exercised  in  furtherance  of  justice,  and  in  a  manner  so  as  not 
to  encourage  the  tampering  with  witnesses  to  induce  them  to  prop  up 
a  cause  whose  weakness  has  been  exposed.  Where  mere  formal  proof 
has  been  omitted,  Courts  have  allowed  witnesses  to  be  called  or  docu- 
ments to  be  produced  at  any  time  before  the  jury  retire,  in  order 
to  supply  it.  So,  material  testimony  ought  not  to  be  rejected  because 
offered  after  the  evidence  is  closed  on  both  sides,  unless  it  has  been 
kept  back  by  trick  and  the  opposite  party  would  be  deceived  or  injuri- 
ously affected  by  it.  So,  after  a  witness  has  been  examined  and  cross- 
examined,  the  Court  may  at  its  discretion  permit  either  party  to  exam- 
ine him  again,  even  as  to  new  matter,  at  any  time  during  the  trial.  So, 
where  by  an  accidental  omission  plaintiff's  attorney  does  not  call  and 
examine  a  witness  who  was  present  in  Court,  and  a  non-suit  is  moved 
for  after  he  has  rested  his  case,  the  Court  will  permit  the  witness  to 
be  examined  in  furtherance  of  justice.  This  Court  is  sensible  of  the 
disadvantages  under  which  it  labors  in  revising  the  discretion  of  the 
circuit  Courts  in  matters  of  this  kind,  and  a  strong  case  must  be  pre- 
sented for  its  interference  before  it  can  be  induced  to  disturb  the  judg- 
ment of  inferior  Courts  by  revising  the  exercise  of  the  discretion  with 
which  they  are  entrusted  in  regard  to  the  relaxation  of  the  rules  of 
evidence.  It  must  be  manifest  to  any  one  conversant  with  the  trial  of 
causes  that  the  Court  before  which  a  trial  is  had,  from  having  an  op- 
portunity of  seeing  the  conduct  of  parties,  of  witnessing  the  difference 
in  the  experience  of  the  opposite  counsel,  and  many  incidents  which 
cannot  be  set  out  in  a  bill  of  exceptions  and  which  influence  the  exer- 
cise of  its  discretion  (and  properly  too),  has  superior  means  for  a  wise 
and  judicious  exercise  of  this  power  than  is  possessed  by  this  Court, 
which  is  confined  entirely  to  the  facts  spread  upon  the  record. "^ 

I — Quoted   from  W.,   §    1863.  proof    of    any    matter    in    issue    is    throwti 

2 — IVaite,    J.,    in    Hathaway    v.    Heming-  upon    the    plaintiff,    he    must    in    the    first 

way,    20     Conn.     191,     19s     (1850):       "The  instance    introduce    all    the    evidence    upon 

rule    upon    this    subject    is    a    familiar    one.  which    he    relies    to    establish    his   case.      He 

When,    by    the    pleadings,    the    burden    of  cannot,   as   said   by   Lord   Ellenborough,   go 


No.  400.  ORDER   OF   INTRODUCING  EVIDENCE.  383 

ROGERS  V.  BRENT   (1849). 
10  III.  5/s,  587. 

Caton,  J.:  "This  was  an  action  of  ejectment,  and  upon  the  trial  in 
the  circuit  court  the  plaintiff  below  introduced  a  patent  from  the  United 
States,  for  the  premises  in  question,  to  Jesse  Bowman  as  assignee 
*"  of  Samuel  M.  Bowman,  dated  on  the  first  of  May,  1843,  which 
was  followed  by  a  deed  from  Jesse  Bowman  to  Brent,  dated  December 
ist,  1846.  The  plaintiff  then  proved  the  possession  of  the  defendant, 
and  closed  his  case. 

"The  defendant  then  offered  to  prove  by  the  register's  certificate, 
that  the  land  in  controversy  was  entered  at  the  land  office  by  Samuel 
M.  Bowman  on  the  19th  of  May,  1840,  and  that  he  assigned  his  certifi- 
cate of  purchase  to  Jesse  Bowman  on  the  5th  of  April,  1843.  He  also 
offered  the  record  of  a  judgment  in  the  Lee  circuit  court,  against  Sam- 
uel M.  Bowman,  which  was  entered  on  the  12th  day  of  September, 
1842,  upon  which  an  execution  was  issued  on  the  28th  of  the  same 
month,  by  virtue  of  which  the  sheriff  levied  on  the  premises  in  question, 
and  advertised  and  sold  them  according  to  law  to  Southwick,  who  ob- 
tained a  sheriff's  deed  on  the  17th  of  December,  1844.  As  each  por- 
tion of  this  evidence  was  offered  it  was  objected  to,  and  ruled  out  by 
the  court,  and  an  exception  taken,  A  verdict  and  judgment  were  en- 
tered for  the  plaintiff.  .  .  . 

"Having  shown  in  what  way  it  was  competent  for  Rogers  to  prove 
that  he  did  not,  in  the  language  of  the  issue,  'unlawfully  withhold  the 
possession,'  it  only  remains  to  be  seen  whether  the  evidence  which  he 
offered,  and  which  was  excluded  by  the  Court,  tended  to  prove  such  a 
case.  .  .  .  The  question  is,  not  whether  it  was  sufficient  of  itself  to 
make  out  the  defence,  but  would  it  aid  to  make  out  the  case  ?  Would 
it  tend  to  prove  the  defence  ?  Most  cases  have  to  be  proved  by  a  suc- 
cession of  distinct  facts,  neither  of  which  standing  alone  would  amount 
to  anything,  while  all  taken  together  form  a  connected  chain  and  estab- 
lish the  issue;  and  from  necessity  a  party  must  be  allowed  to  present 
his  case  in  such  detached  parts  as  the  nature  of  his  evidence  requires. 
It  would  be  no  less  absurd  than  inconvenient,  when  proof  is  offered  in 
its  proper  order,  of  one  necessary  fact,  to  require  the  party  to  go  on 

info  half  his  case  and  reserve  the  remain-  faither    testimony    which    may   properly   be 

der.       The    same    rule    applies    to    the    de-  considered      testimony     in     chief.  .  .   .   But 

fence.      After    the    plaintiff    has    closed    his  this    rule    is    not    in    all    cases    an    inflexible 

testimony,    the   defendant  must   then    bring  one.      There    is    and    of   necessity   must   be 

forward    all    the    evidence    upon    which    he  a  discretionary  power,  vested  in  the  Court 

relies  to  met  the  claim  on  the  part  of  the  before    which    a   trial    is   had,    to   relax    the 

plaintiff.     He  cannot  introduce  a  part  and  operation    of    the    rule,    when    great    injus- 

reserve   the    residue   for  some   future   occa-  tice  will   be  done  by  a  strict  adherence  to 

sion.      After    he    has    rested,    neither    party  it." 

can    as    a    matter    of    right    introduce    any"  Compare   the   authorities   cited    in    W.,    § 

1867. 


384 


SIMPLIFICATIVE  RULES. 


No.  400. 


and  offer  to  prove  at  the  same  time  all  the  other  necessary  facts  to 
make  out  the  case.  Such  a  practice  would  embarrass  the  administration 
of  justice  and  prove  detrimental  to  the  rights  of  parties.  It  may  be 
that  Rogers  was  bound  to  connect  himself  with  Southwick's  title  before 
he  could  insist  that  the  patent  was  void  because  obtained  in  fraud  of 
such  title;  but  he  must  first  prove  such  title  to  exist  before  he  could 
connect  himself  with  it;  and  this  he  was  not  allowed  to  do.  If  he  was 
bound  to  connect  himself  with  Bowman's  creditors,  to  avail  himself  of 
the  fraud  practiced  upon  them,  he  must  first  show  that  there  were  such 
creditors;  and  the  judgment  which  proved  this  was  ruled  out  by  the 
Court.  It  is  the  right  of  the  party,  when  he  offers  evidence  in  its 
proper  order  which  proves  or  tends  to  prove  any  necessary  fact  in  the 
case,  to  have  it  go  to  the  jury;  for  the  reasonable  presumption  is  that 
it  will  be  followed  by  such  other  proof  as  is  necessiiry  for  its  proper 
connection,  and  if  it  is  not,  it  then  becomes  irrelevant,  and  as  such, 
if  desired,  may  be  withdrawn  from  the  jury.  If  there  is  anything  to 
induce  the  suspicion  that  the  time  of  the  Court  is  being  trifled  with,  it 
may  be  proper  to  call  upon  counsel  to  state  the  connection  which  they 
expect  to  give  the  proposed  evidence;  but  this  should  ordinarily  be 
avoided,  as  it  is  often  embarrassing  for  counsel  to  anticipate  their  case 
in  the  presence  of  the  opposite  party.  It  may  sometimes  happen  that 
evidence  is  offered  so  out  of  its  proper  place  as  to  authorize  the  Court 
to  exclude  it  for  want  of  a  proper  foundation ;  as,  in  this  case,  had  the 
sheriff's  deed  been  offered  without  the  previous  proceedings,  it  might 
have  been  properly  excluded  till  the  proper  foundation  for  it  was  shown. 
No  such  objection,  however,  existed  in  this  case.  The  party  commenced 
at  the  foundation  of  his  case,  and  offered  to  establish  the  first  necessary 
fact ;  and,  when  that  was  ruled  out,  he  still  persisted  in  offering  to 
prove  subsequent  parts  of  his  case  dependent  upon  those  previously 
offered  and  rejected,  till  his  repeated  offers  had  almost  the  appearance 
of  wrestling  with  the  opinion  of  the  Court.  He  proceeded  as  far  as 
duty  or  propriety  required."^ 


3 — Christiancy,  J.,  in  Campau  v.  Dewey, 
9  Mich.  381,  422  (1861):  "On  the  direct 
examination,  it  is  true,  if  the  relevancy 
of  a  proposed  inquiry  does  not  appear,  the 
Court  have  a  right  to  call  on  the  counsel 
to  state  the  object  of  the  proposed  testi- 
mony and  the  manner  in  which  it  is  to 
be  made  relevant;  and  the  Court  may  in 
the  exercise  of  its  discretion  requires  a  par- 
ticular statement  of  the  substance  of  the 
evidence  in  connection  with  which  the  pro- 
posed inquiry  is  to  be  rendered  pertinent, 
and,  if  refused,  may  reject  the  evidence. 
.  .  .  But  on  a  cross-examination  the  rule 
as  to  relevancy  is  not  so  strict;  and  it 
would  be  a  very  unsafe  rule  which  should 
allow  the   Court   to   reject  evidence,    which 


may  in  any  manner  be  rendered  material, 
because  the  party  proposing  it  has  not 
volunteered  to  precede  it  with  a  statement 
of  its  precise  object  and  of  the  other  facts 
in  connection  with  which  it  is  to  be  ren- 
dered material.  The  Court  may  doubtless, 
in  its  discretion,  when  a  question  is  asked 
on  cross-examination  which  he  thinks  can- 
not be  rendered  pertinent,  require  an  in- 
timation of  its  object,  and  reject  the  evi- 
dence if  not  given.  But  this  is  a  discre- 
tion which  should  be  very  sparingly  exer- 
cised, and  nothing  further  than  a  bare  in- 
timation should  generally  be  required;  for, 
in  many  cases,  to  state  the  precise  object 
of  a  cross-examination  would  be  to  defeat 
it." 


No.  403.  ORDER   OF    INTRODUCING   EVIDENCE.  385 

PARNELL  COMMISSION'S  PROCEEDINGS  (1888). 

^^d  day,  Times'  Rep.  pt.  p,  p.  104. 

The  Irish  Land  League  and  its  leaders  being  charged  with  com- 
plicity in  crime,  the  doings  and  admissions  of  various  known  criminals 
were  offered,  with  the  purpose  of  connecting  with  them  the 
^"■^  League  leaders ;  Sir  Richard  Webster,  Attorney-General,  having 
asked  a  witness  what  one  Carey  said  about  Egan,  one  of  the  leaders.  Sir 
Charles  Russell  objected;  Sir  R.  Webster:  "1  think,  if  your  lordships 
trust  me  for  a  moment,  you  will  see  that  it  is  in  the  interests  of  justice 
that  this  man  should  make  his  statement.  I  will  undertake  to  connect 
it  with  Egan";  Sir  C.  Russell:  "I  do  not  think  that  is  a  reason"';  Presi- 
dent Hannen  :  "Well,  if  the  Attorney-General  does  not  fulfil  his  pledge, 
I  shall  strike  out  what  is  said";  Sir  C.  Russell:  "We  have  had  so  many 
of  these  pledges  which  have  been  broken";  Sir  R.  Webster:  "I  beg  your 
pardon;  no  pledges  that  I  have  given  have  been  broken";  Sir  C.  Russell: 
"Well,  left  unfulfilled";  Sir  R.  Webster:  "Or  left  unfulfilled";  Presi- 
dent Hannen  :  "Counsel  can  only  say  what  they  anticipate  will  be  the 
case;  if  this  is  not  made  evidence,  I  will  strike  it  out.""* 


LORD  LO VAT'S  TRIAL  (1746). 

18  How.  St.  Tr.  658. 

Hardwicke,  L.  C.  :  "My  lords,  the  rule  for  the  examination  of  wit- 
nesses in  this  Court,  in  either  House  of  Parliament,  and  everywhere 
else,  is  that  ...  all  questions  that  are  asked,  whether  touching 
*"■'  the  matter  of  fact  to  be  tried  or  the  credibility  of  the  witness,  are 
to  be  asked  at  the  proper  time.  The  party  who  produces  a  witness 
has  a  right  to  go  through  the  examination  first,  and  then  the  other  side 
cross-examines  him;  and  after  that  is  over,  the  judge  asks  him  such 
questions  as  he  thinks  proper;  unless,  as  I  said  before,  there  be  any 
objections  to  the  questions,  or  any  doubtful  matter  arises  that  wants 
immediately  to  be  cleared  up.  The  same  method  is  to  be  observed  here; 
and  the  reason  of  it,  my  lords,  is  that  unless  your  lordships  observe  this 
method,  you  will  be  in  perpetual  confusion." 


MOODY  V.  ROWELL   (1835). 

1/  Pick.  4po,  4pp. 

Assumpsit  on  a  promissory  note   for  the  sum  of  $2,750,  dated  No- 
vember  I,   1828,  payable  to  John   Blaisdell,  junior,  since  deceased,  or 
his  order,  in  five  years,  with  interest,  and  purporting  to  be  signed 
*  by  the  defendant  and  indorsed  by  the  payee.     The  defence  rested 

on  the  ground,  that  the  signatures  of  the  defendant  and  of  the  payee 

4 — Compare   the  authorities  cited   in  W.,   §   1871. 


386  SIMPLIFICATIVE  RULES.  No.  403. 

were  forged.  Henry  H.  Brown,  who  was  called  as  a  witness  for  the 
defendant,  was  examined  as  to  the  handwriting  of  the  payee.  On  his 
cross-examination,  the  plaintiff  examined  him  as  to  the  handwriting  of 
the  defendant.  The  judge  did  not  permit  the  plaintiff  to  cross-examine 
the  witness  as  to  the  defendant's  signature,  he  not  having  been  ques- 
tioned  on  that  subject  by  the  defendant.  .  .  . 

ShaWj  C.  J.:  "Where  a  witness  is  called  to  a  particular  fact,  he 
is  a  witness  to  all  purposes,  and  may  be  fully  cross-examined  to  the 
whole  case.  ...  It  is  most  desirable  that  rules  of  general  practice, 
of  so  much  importance  and  of  such  frequent  recurrence,  should  be  as 
few,  simple,  and  practical  as  possible,  and  that  distinctions  should  not 
be  multiplied  without  good  cause.  It  would  be  often  difficult,  in  a  long 
and  complicated  examination,  to  decide  whether  a  question  applies 
wholly  to  new  matter  or  to  matter  already  examined  to  in  chief."^ 


PHILADELPHIA  &  TRENTON  R.  CO.  v.  STIMPSON    (1840). 

14  Pet.  448,  461. 

At  the  April  session  of  the  Circuit  Court,  James  Stimpson  insti- 
tuted an  action  against  the  plaintiffs  in  error,  for  the  recovery  of  dam- 
ages, for  the  violation  of  a  patent  granted  to  him  by  the  United 
*"*  States,  on  the  26th  day  of  September,  1835,  for  "a  new  and 
useful  improvement  in  the  mode  of  turning  short  curves  on  railroads." 
The  case  was  tried  on  the  i6th  day  of  February,  1839;  and  a  verdict 
was  rendered  for  the  plaintiff,  for  the  sum  of  four  thousand  two  hun- 
dred and  fifty  dollars.  On  the  trial  of  the  cause,  the  defendants  tendered 
a  bill  of  exceptions  to  the  decision  of  the  Court,  on  their  admitting 
the  patent  to  the  plaintiff  in  evidence;  and  to  other  rulings  of  the 
Court  in  the  course  of  the  trial.  .  .  .  The  third  exception  was  to  the  re- 
fusal of  the  Court  to  allow  the  defendants  to  introduce  proof  of  the  con- 
versations between  the  patentee  and  the  counsel  of  the  Baltimore  and 
Ohio  Railroad  Company,  while  an  arrangement  of  a  suit  against  the 
Company  was  made,  as  to  the  character  and  effects  of  the  arrange- 
ments, .  .  . 

5 — Campbell,  J.,  in  Chandler  v.  Allison,  signedly  stopping  short  of  it.  Any  ques- 
10  Mich.  477  (1862):  "The  only  object  of  tion  which  fills  up  his  omissions,  whether 
this  process  [of  cross-examination]  is  to  designed  or  accidental,  is  legitimate  and 
elicit  the  whole  truth  concerning  transac-  proper  on  cross-examination.  ...  A  party 
tions  which  may  be  supposed  to  have  been  cannot  glean  out  certain  parts,  which  alone 
only  partially  explained,  and  where  the  would  make  out  a  false  account,  and  save 
whole  truth  would  represent  them  in  a  his  own  witness  from  the  sifting  process  by 
different  light.  Whenever  an  entire  trans-  which  only  those  omissions  can  be  detect- 
action  is  in  issue,  evidence  which  conceals  ed.  There  could  be  no  such  thing  as  cross- 
a  part  of  it  is  defective,  and  does  not  examination  if  such  a  course  were  allowed, 
comply  with  the  primary  obligation  of  the  .  .  .  No  one  can  be  compelled  to  make  his 
oath,  which  is  designed  to  elicit  the  whole  adversary's  witness  his  own  to  explain  or 
truth.  If  the  witness  were  (as  he  always  fill  up  a  transaction  he  has  partially  ex- 
may  be)  requested  to  state  what  he  knows  plained  already." 
about  it,   he  would  not  do  his  duty  by  de- 


No.  404.  ORDER   OF   INTRODUCING  EVIDENCE.  387 

Stoky,  J. :  "The  next  exception  is  to  the  refusal  of  the  Court  to 
allow  certain  questions  to  be  put  by  the  defendants  to  John  H.  B.  La- 
trobe,  a  witness  introduced  by  the  defendants  to  maintain  the  issue  on 
their  part.  Latrobe,  on  his  examination,  stated,  'I  know  Mr.  Stimp- 
son  by  sight  and  character.  He  granted  to  the  Baltimore  and  Ohio 
Railroad  Company  the  privilege  of  using  the  curved  ways  on  their 
railroad,  and  all  the  lateral  roads  connected  therewith.  I  fix  the  date 
of  the  contract  in  the  early  part  of  October,  1834,  because  I  have  then 
a  receipt  of  Mr.  Stimpson's  counsel,  for  two  thousand  five  hundred  dol- 
lars. Mr.  Stimpson  laid  his  claim  against  the  Baltimore  Company 
for  an  infringement  of  his  patent,  in  1832.  It  was  referred  to  me  by 
the  Company,  and  I  advised  them.'  The  counsel  for  the  defendants 
then  offered  to  prove  by  the  same  witness,  the  declarations  of  the  plain- 
tiff and  his  agent,  to  the  witness,  that  the  settlement  made  with  the 
Baltimore  and  Ohio  Railroad  Company  with  the  plaintiff,  was  not  an 
admission  by  the  said  company  of  the  plaintiff's  right  in  the  alleged 
invention,  but  a  mere  compromise  of  a  pending  suit,  disconnected  with 
a  grant,  in  writing,  made  by  the  plaintiff  to  the  said  company.  .  .  . 

"Now,  (as  has  been  already  intimated,)  it  is  incumbent  upon  those 
who  insist  upon  the  right  to  put  particular  questions  to  a  witness,  to 
establish  that  right  beyond  any  reasonable  doubt,  for  the  very  purpose 
stated  by  them ;  and  they  are  not  afterwards  at  liberty  to  desert  that 
purpose,  and  to  show  the  pertinency  or  relevancy  of  the  evidence  for  any 
other  purpose,  not  then  suggested  to  the  Court.  It  was  not  pretended  at 
the  argument,  that  the  evidence  so  offered  was  good  evidence  in  chief, 
in  behalf  of  the  defendants  upon  the  issue  in  the  cause.  It  was  res 
inter  alios  acta,  and  had  no  tendency  to  disprove  the  defendant's  title 
to  the  invention,  or  to  support  any  title  set  up  by  the  defendants ;  for 
no  privity  was  shown  between  the  defendants  and  the  Baltimore  Com- 
pany. As  evidence  in  chief,  therefore,  it  was  irrelevant  and  inadmis- 
sible. .  .  . 

"But  it  is  now  said  that  the  evidence  was  in  fact  offered  for  the 
purpose  of  rebutting  or  explaining  certain  statements  made  by  one  Ross 
Winans,  a  witness  called  by  the  defendants,  in  his  answers  upon  his 
cross-examination  by  the  plaintiff's  counsel.  Now  this  purpose  is  not 
necessarily,  or  even  naturally,  suggested  by  the  purpose  avowed  in  the 
record.  Upon  his  cross-examination  Winans  stated :  'I  understood 
there  were  arrangements  made  with  the  Baltimore  Company.  I  heard 
the  company  paid  five  thousand  dollars.'  Now,  certainly  these  statements, 
if  objected  to  by  the  defendants,  would  have  been  inadmissible  on  two 
distinct  grounds,  i.  First,  as  mere  hearsay;  2.  And,  secondly  .  .  .  upon 
the  broader  principle  (now  well  established,  although  sometimes  lost 
sight  of  in  our  loose  practice  at  trials)  that  a  party  has  no  right  to 
cross-examine  any  witness  except  as  to  facts  and  circumstances  con- 
nected with  the  matters  stated  in  his  direct  examination.  If  he  wishes 
to  examine  him  as  to  other  matters,  he  must  do  so  by  making  the 
witness  his  own,  and  calling  him  as  such  in  the  subsequent  progress 


388  SIMPLIFICATIVE  RULES.  No.  404, 

of  the  cause.^  The  question  then  is  presented,  whether  a  party 
can,  by  his  own  omission  to  take  an  objection  to  the  admission  of 
improper  evidence  brought  out  on  a  cross-examination,  found  a  right 
to  introduce  testimony  in  chief  to  rebut  it  or  explain  itJ  If  upon 
the  cross-examination,  Winans'  answer  had  been  such  as  was  unfavour- 
able to  the  plaintiff,  upon  the  collateral  matters  thus  asked,  which  were 
not  founded  in  the  issue,  he  would  have  been  bound  by  it,  and  not 
permitted  to  introduce  evidence  to  contradict  it.  There  is  great  diffi- 
culty in  saying  that  the  defendants  ought  to  be  in  a  more  favoured 
predicament,  and  to  acquire  rights  founded  upon  the  like  evidence  to 
which  they  did  not  choose  to  make  any  objection,  although  otherwise 
it  could  not  have  been  in  the  cause.  But  waiving  this  consideration,  the 
grounds  on  which  we  think  the  refusal  of  the  Court  was  right,  are: 
first,  that  it  was  not  distinctly  propounded  to  the  Court,  that  the  evi- 
dence was  offered  to  rebut  or  explain  Winans'  testimony;^  and,  sec- 
ondly, that  in  the  form  in  which  it  was  put,  it  proposed  to  separate  the 
written  contract  of  compromise  from  the  conversations  and  negotia- 
tions which  led  to  it,  and  to  introduce  the  latter  without  the  former, 
although  it  might  turn  out  that  the  written  paper  might  most  materially 
affect  or  control  the  presumptions  deducible  from  those  conversations, 
and  negotiations."* 


NEW  YORK  IRON   MINE  v.  NEGAUNEE  BANK    (1878). 

jp  Mich.  644,  6§p. 

CooLEY,  J. :  "The  plaintiff  in  error  is  sued  as  a  maker  of  three  prom- 
issory notes  and  endorser  of  a  fourth,  all  of  which  are  copied  in  the 
margin. ^°  By  reference  to  these  notes  it  will  be  seen  that  the  name 
*""  of  plaintiff  in  error  is  subscribed  or  endorsed  by  W.  L.  Wetmore, 
and  the  contest  has  been  made  over  his  authority  to  make  use  of 
the  name  of  plaintiff  in  error  as  he  has  done.  The  New  York  Mine 
is  a  corporation,  having  its  place  of  operations  at  Ishpeming  in  this 
State.  It  was  organized  some  fourteen  years  ago,  with  Samuel  J. 
Tilden  and  William  L.  Wetmore  as  corporators.  Mr.  Tilden  has  had 
the  principal  interest  from  the  first,  and  has  always  acted  as  president 
and   treasurer,    keeping   his   office    in    New   York   city.     Mr.    Wetmore 

6 — Walker,    C.    J.^    in    Stafford   v.    Fargo,  other    side,    and    the    party    against    whom 

35    III.    481,    486    (1864):    "[The   opponent]  the    witness    was    first    called    would    obtain 

has    only    the    right    to    cross-examine    upon  the    advantage    of    getting    evidence    under 

the    facts    to   which    he    [the   witness]    testi-  the    latitude   allowed   in   cross-examination." 

fied  in  chief.     If  he  can  give  evidence  bene-  Compare    Nos.    403   and    405. 

ficial  to  the  other  party,  he  should  call  him  7 — On    this    point,    compare    the    authori- 

at  the  proper  time  and  make  him  his  own  ties  cited  in  W.j   §   15. 

witness  and  examine  him  in  chief,   thereby  8 — On   this   point,  compare   No.    13,  ante. 

giving    the    other    party    the    benefit    of    a  9 — On  this  point,  compare  Nos.   552,  ff., 

cross-examination      on      such      evidence     in  post. 

chief.  Otherwise  the  party  calling  the  10 — These  notes  were  signed  or  en- 
witness  would  be  deprived  of  a  cross-ex-  dorsed  "New  York  Iron  Mine,  by  W.  L. 
amination   as   to   evidence  called   out  by  the  Wetmore." 


No,  405.  ORDER   OF   INTRODUCING   EVIDENCE,  389 

has  always  until  this  controversy  arose  acted  as  general  agent  with 
his  office  at  Ishpeming,  The  board  of  direction  has  been  made  up  of 
these  gentlemen  with  some  nominal  holders  of  stock  in  New  York 
city  as  associates.  .  .  ,  The  firm  of  Wetmore  &  Bro,  named  in  the  three 
notes  purporting  to  be  made  by  the  New  York  Mine,  was  composed 
of  William  L.  and  F.  P.  Wetmore,  and  there  was  evidence  that  the 
New  York  Mine  had  had  business  transactions  with  that  firm  to  the 
amount  in  all  of  $125,000.  ...  It  was  not  claimed  on -the  trial  that 
there  had  ever  been  any  corporate  action  expressly  empowering  Wet- 
more as  general  agent  to  make  promissory  notes,  nor  did  it  appear  that 
he  had  ever  executed  any  in  its  name  except  a  few.  ...  It  was  not 
disputed  by  the  defense  that  the  corporation  as  such  had  power  to 
make  the  notes  in  suit.  The  question  was  whether  it  had  in  any  man- 
ner delegated  that  power  to  Wetmore.  .  .  . 

"Some  of  the  proceedings  on  the  trial  require  attention,  and  es- 
pecially the  rule  of  cross-examination  laid  down  by  the  circuit  judge 
when  Wetmore  was  on  the  stand  as  a  witness  for  the  plaintiff.  Wet- 
more was  manifestly  a  willing  witness,  and  made  such  showing  as  was 
in  his  power  in  support  of  the  authority  which  as  general  agent  he 
had  assumed  to  exercise.  But  although  he  was  the  first  witness  called, 
and  the  case  involved  nothing  but  paper  made  or  indorsed  by  himself, 
he  was  not  asked  respecting  his  signatures,  and  the  notes  were  not 
offered  in  evidence  while  he  was  upon  the  stand.  The  reason  for  this 
was  apparent  as  soon  as  the  cross-examination  commenced,  for  when 
the  witness  was  asked  any  questions  concerning  the  notes,  the  purpose 
of  which  was  to  show  that  he  had  signed  or  indorsed  them  without 
authority  and  in  fraud  of  defendant,  and  that  he  had  admitted  that 
such  was  the  fact,  objection  was  at  once  interposed  on  behalf  of  the 
plaintiff,  and  the  circuit  judge,  remarking  that  the  witness  had  given 
no  testimony  in  reference  to  the  notes,  nor  had  any  testimony  been 
introduced  by  any  other  party  in  reference  to  them,  nor  had  the  notes 
been  put  in  evidence,  sustained  the  objection. 

"The  question  of  the  proper  range  of  cross-examination  has  been 
discussed  in  this  State  until  it  would  seem  that  further  discussion 
must  be  entirely  needless.  .  .  .  [After  quoting  Mr.  J.  Campbell's  words 
as  set  forth  ante.  No.  403,  note  i],  one  might  suppose,  after  reading 
this  language,  that  it  was  written  in  anticipation  of  the  proceedings  in 
this  very  case.  .  .  .  Here  the  matter  in  issue  was  confined  to  the  single 
point  of  Wetmore's  authority  to  make  and  endorse  the  paper  sued 
upon.  .  .  ,  The  questions  on  behalf  of  the  plaintiff  had  been  care- 
fully restricted  to  that  part  of  the  facts  which  it  was  supposed 
would  tend  in  its  favor  and  in  respect  to  which  a  cross-ex- 
amination could  not  be  damaging,  and  were  intended,  instead  of  elicit- 
ing the  whole  truth,  to  conceal  whatever  would  favor  the  defense.  The 
witness,  instead  of  being  required,  according  to  the  obligation  of  his 
oath,  to  tell  the  whole  truth,  had  been  carefully  limited  to  something 
less  than  the  whole;  and  when  questions  were  asked  calculated  to  sup- 


390  SUNDRY  AUXILIARY  RULES.  No.  405. 

ply  his  omissions,  they  were  ruled  out  because  they  did  not  relate  to 
the.  precise  circumstances  which  the  plaintiff  had  thought  it  for  his 
interest  to  call  out.  It  would  be  difficult  to  present  a  more  striking 
illustration  of  the  error  in  the  rule  in  People  v.  Horton^^  than  is 
afforded  by  this  case.  For  here  was  the  principal  actor  in  the  transac- 
tion under  investigation  brought  forward  as  a  witness  to  support  his 
own  acts,  but  carefully  examined  in  such  a  manner  as  to  avoid  having 
him  utter  a  single  word  regarding  the  main  fact — though  it  was  pecu- 
liarly within  his  own  knowledge — ,  and  even  his  handwriting  was  left 
to  be  proved  by  another.  In  that  manner  he  was  made  to  conceal  not 
merely  a  part  of  the  transaction  but  a  principal  part,  and  made  to  tell, 
not  the  whole  truth  according  to  the  obligation  of  his  oath,  but  a  small 
fraction  only, — a  fraction,  too,  that  was  important  only  as  it  bore  upon 
the  main  fact  which  was  so  carefully  kept  out  of  sight  while  this  wit- 
ness was  giving  his  evidence.  It  is  true,  the  defense  was  at  liberty 
to  call  the  witness  subsequently ;  but  this  is  no  answer ;  the  defense  was 
not  compellable  to  give  credit  to  the  plaintiff's  witness  as  its  own 
for  the  purposes  of  an  explanation  of  facts  constituting  the  plaintiff's 
case  and  a  part  of  which  the  plaintiff  had  put  before  the  jury  when 
examining  him.  One  of  the  mischiefs  of  the  rule  in  People  v.  Horton 
was  that  it  encouraged  a  practice  not  favorable  to  justice,  whereby  a 
party  was  compelled  to  make  an  unfriendly  witness  his  own,  after  the 
party  calling  him  had  managed  to  present  a  one-sided  and  essentially 
false  account  of  the  facts,  by  artfully  aiding  the  witness  to  give  such 
glimpses  of  the  truth  only  as  would  favor  his  own  side  of  the  issue. 
What  has  been  said  on  this  point  has  in  substance  been  said  many  times 
before.  The  necessity  of  repeating  it  is  a  singular  illustration  of  the 
difficulty  with  which  a  mischievous  but  plausible  precedent  is  sometimes 
got  rid  of."" 


SUB-TITLE  II. 

SUNDRY  RULES  TO  AVOID    CONFUSION    OF    ISSUES, 
UNDUE  WEIGHT,  ETC^s 

ERASER  V.  JENNISON    (1879). 
42  Mich.  206,  224,  5  N.  W.  882. 

CooLEY,  J. :     "This  case  involves  the  validity  of  the  will  of  the  late 

Alexander  D.   Eraser,   of  Detroit,   one  of  the  oldest  and  best  known 

members  of  the  Michigan  bar.    The  will  bears  date  May  17,  1877. 

*""      ...  By  their  pleading  the  contestants  set  up  the  follow  defenses : 

first,  they  deny  the  due  execution  of  the  supposed  will ;  second,  they 

II — 4   Mich.   67,   82;    following  the   rule  13 — For  other  rules  under  this  principle 

in   Phila.  &  T.  R.   Co.   v.   Stimpson.  see   ante,    Nos.    21-27,    33-36,    51-54. 

12 — Compare  the  authorities  cited  in  W., 
S  1890. 


No.  407.  CUMULATIVE  witnesses;  judge;  JUROR.  391 

aver  that  at  the  time  of  the  supposed  execution  the  decedent  was  of 
unsound  mind,  and  incapable  of  making  a  vahd  will;  third,  they  allege 
that  the  will  was  the  result  of  insane  delusions  in  the  decedent.  .  .  . 
Dr.  Henry  Hurd  was  called,  who  testified  that  he  .  .  .  was  familiar 
with  mental  diseases,  their  causes  and  symptoms.  .  .  .  Four  other  wit- 
nesses were  called  who,  as  medical  experts,  testified  to  the  same  effect 
with  Dr.  Hurd.  This  made  five  in  all.  A  sixth  was  called,  but  the 
Court  declined  to  hear  more.  .  .  . 

"The  Court  was  quite  justified  in  declining  to  permit  Dr.  Johnson 
to  be  called  as  an  expert  by  the  contestants  after  five  other  experts  had 
been  called  and  examined  on  their  behalf.  If  testamentary  cases 
are  ever  to  be  brought  to  a  conclusion,  there  must  be  some  limit  to 
the  reception  of  expert  evidence;  and  that  which  was  fixed  in  this  case 
was  quite  liberal  enough.  To  obtain  such  evidence  is  expensive,  since 
desirable  witnesses  are  not  to  be  found  in  every  community;  but  an 
army  may  be  had  if  the  Court  will  consent  to  their  examination;  and 
if  legal  controversies  are  to  be  determined  by  the  preponderance  of 
voices,  wealth  in  all  litigation  in  which  expert  evidence  is  important 
may  prevail  almost  of  course.  But  one  familiar  with  such  litigation 
cannot  but  know  that,  for  the  purposes  of  justice,  the  examination  of 
two  conscientious  and  intelligent  experts  on  a  side  is  better  than  to 
call  more ;  and  certainly,  when  five  on  each  side  have  been  examined, 
the  limit  of  reasonable  liberality  has  in  most  cases  been  reached.  The 
jury  cannot  be  aided  by  going  farther.  Little  discrepancies  that  must 
be  found  in  the  testimony,  of  those  even  who  in  the  main  agree,  begin 
to  attract  attention  and  occupy  the  mind,  until  at  last  jurors,  with 
their  minds  on  unimportant  variances,  come  to  think  that  expert  evi- 
dence, from  its  very  uncertainty,  is  worthless.  This  is  not  a  desirable 
state  of  things ;  and  it  can  only  be  avoided  by  confining  the  use  of  ex- 
pert evidence  within   reasonable  bounds."^ 


MAITLAND  v.  ZANGA    (1896). 

14  Wash.  92,  44  Pac.  iiy. 

Dunbar,  J. :  "This  is  an  action  for  damages,  founded  on  an  agree- 
ment to  convey  land  ;  at  least  we  construe  the  contract  to  be  an  agreement 
to  convey.  The  contract  was  executed  on  August  5.  1858.  On  No- 
vember  26,  1889, — something  more  than  four  years  after  the  execu- 
tion of  the  contract — the  respondent,  by  warranty  deed,  conveyed  said 
lands  to  one  Roswell  Skeel,  a  third  party  and  bona  fide  purchaser, 
which  deed  was  duly  recorded.  The  answer  alleges  afiirmatively  that 
the  contract  was  a  gift  to  take  effect  at  respondent's  death,  alleges 
fraudulent  representations,  ignorance  of  defendant,  etc.  .  .  .  During  the 
progress  of  the  trial  the  presiding  judge,  at  the  request  of  the  respond- 
ent, and  over  the  objections  of  the  appellant,  took  the  witness  stand, 

1 — Compare  the  authorities  cited  in   W.,   5     1908. 


392  SUNDRY  AUXILIARY  RULES.  No.  407. 

and  testified  concerning  testimony  offered  by  the  appellant  in  some 
prior  case  involving  the  matter  in  dispute.  This  is  assigned  by  the  ap- 
pellant as  error,  and,  v^^hile  the  authorities  are  somewhat  conflicting 
on  this  proposition,  we  think  the  weight  of  authority  and  the  better 
reasoning  are  opposed  to  the  admission  of  such  testimony.  Respondent 
contends  that  because  it  is  a  well  established  rule  that  jurors  may 
testify  in  a  case,  there  is  no  reason  why  the  judge  should  not  be 
allowed  to  do  so.  But  it  seems  to  us  that  there  are  many  reasons  why 
the  judge  should  not  be  allowed  to  testify  that  would  not  weigh  in 
the  case  of  a  juror.  If  the  defendant  is  entitled  to  the  testimony  of 
the  judge,  the  plaintiff  is  equally  entitled  to  his  testimony,  and  it  might 
eventuate,  if  this  practice  were  to  be  tolerated,  that  the  judge,  upon 
a  motion  for  nonsuit,  would  be  compelled  to  pass  upon  the  weight  of 
his  own  testimony;  and,  considering  the  inclination  of  the  human  mind 
to  attach  more  importance  to  his  own  statements  than  to  those  of  others, 
it  is  easy  to  see  that  the  rights  of  the  litigants  might  be  prejudiced  in 
such  a  case.  Again,  while  upon  the  witness  stand  he  would  have  a 
right  to  all  the  protection  that  any  other  witness  has  under  the  law. 
He  could  refuse  to  answer  questions  which,  in  his  judgment,  might 
tend  to  criminate  him.  He  might  decline  to  answer  questions  the  ad- 
missibility of  which  it  would  be  necessary  for  the  court  to  determine, 
and  which  would  bring  him  as  a  witness  in  conflict  with  himself  as 
a  court.  Again,  it  would  to  a  certain  extent  lead  to  the  embarassment 
of  the  jury,  who  are  subordinate  officers  of  the  court,  and  under  its 
directions,  to  have  to  weigh  the  testimony  of  the  judge  in  the  same 
scales  with  the  testimony  of  other  witnesses  in  the  case  whose  testi- 
mony was  opposed  to  that  of  the  judge.  And  in  many  ways  it  seems 
to  us  that  this  practice  would  lead  to  embarrassment,  and  would  have  a 
tendency  to  lower  the  standard  of  courts,  and  bring  them  into  con- 
tempt. There  is  no  necessity  for  this  practice,  for,  under  the  liberal 
provisions  of  our  laws,  if  a  party  desires  to  avail  himself  of  the  testi- 
mony of  the  judge,  anothef  judge  may  be  called  in  to  preside  at  the 
trial  of  the  cause. "^ 


HOWSER  V.  COMMONWEALTH     (1865). 
51  Pa.  332,  337. 

Woodward,  C.  J. :  "Polly  Paul,  an  elderly  maiden  lady,  who  was 
reputed  to  possess  money,  and  Cassy  Munday,  a  young  girl  who  lived 
with  her,  were  both  cruelly  murdered  on  the  evening  of  the  7th 
*"^  June,  1865,  in  Summerhill  township,  Cambria  county.  The 
plaintiffs  in  error  were  defendants  below  in  an  indictment  which 
charged  only  the  murder  of  Miss  Paul,  and  after  a  full  and  careful 
trial  were  both  convicted  of  murder  in  the  first  degree.  .  .  . 

"The  first  and  ninth  errors  complain  of  the  admission  of  John  Buck 
and  George  W.  Kerby,  two  of  the  jurors  in  the  box,  as  witnesses  on 

2 — Compare  the  authorities  cited  in  W.,   §    1909,   and   No.   369,   ante. 


No.  409.  judge;  juror;  COUNSEL.  393 

the  part  of  the  Commonwealth.  In  respect  to  the  first  of  these  wit- 
nesses, it  might  be  sufficient  to  say  that  the  objection  was  not  made 
mitil  after  he  was  sworn  as  a  witness,  when  it  was  too  late  to  object 
to  his  competency,  and  in  respect  of  both  it  might  be  said  that  they 
were  called  to  incidental  and  comparatively  immaterial  points,  that  did 
not  touch  the  corpus  delicti.  But,  waiving  these  answers,  let  it  be 
distinctly  said  that  jurors  are  not  incompetent  witnesses  in  either  crim- 
inal or  civil  issues.  They  have  no  interest  that  disqualifies,  and  there 
is  no  rule  of  public  policy  that  excludes  them.  .  .  .  The  learned  coun- 
sel argue  that  the  practice  violates  the  constitutional  rights  of  the 
accused,  who  are  entitled  to  a  speedy  and  public  trial  by  an  impartial 
jury,  and  to  be  confronted  with  the  witnesses.  Our  law  takes  the  ut- 
most care  to  secure  to  the  accused,  in  capital  cases,  an  impartial  jury 
— it  almost  allows  prisoners  to  select  their  own  triers.  They  may  exam- 
ine jurors  as  to  their  knowledge  of  circumstances,  their  expressions, 
opinions  or  prejudices,  and  challenge  as  many  as  they  can  show  cause 
for,  and  may  challenge  twenty  without  showing  cause,  and  then  if  any 
juror  happens  to  have  knowledge  of  any  pertinent  fact,  he  is  bound  to 
disclose  it  in  time  for  the  accused  to  cross-examine  him,  and  to  explain 
or  contradict  his  testimony.  If  this  be  not  a  fulfilling  of  the  constitu- 
tional injunction  in  behalf  of  impartial  juries,  it  would  be  difficult  to 
invent  a  plan  that  would  fulfil  it  and  at  the  same  time  be  consistent 
with  the  demands  of  public  justice.  But  counsel  imagine  that  the  con- 
stitutional right  to  confront  witnesses  would  be  abridged  in  the  instances 
of  witnesses  taken  from  the  jury-box,  because  their  truth  and  veracity 
could  not  be  attacked  without  damage  to  the  attacking  party.  As  to 
material  witnesses,  those,  we  mean,  upon  whose  testimony  the  event 
is  essentially  dependent,  we  think  they  ought  not  to  be  admitted  into 
the  jury-box,  and  we  believe  the  general  practice  is  to  exclude  them 
where  the  fact  is  discovered  in  time ;  but  we  do  not  think  the  con- 
stitutional provision  alluded  to,  nor  any  rule  of  law,  is  violated  by  the 
examination  of  a  juror  as  a  witness.  The  a  priori  presumption  is  that 
he  is  a  man  of  truth  and  veracity  or  he  would  not  have  been  sum- 
moned as  a  juror;  and  confronting  witnesses  does  not  mean  impeach- 
ing their  character,  but  means  cross-examination  in  the  presence  of  the 
accused.  .  .  .  He,  like  all  other  witnesses,  must  'confront'  the  accused, 
that  is,  be  examined  in  the  presence  of  the  accused,  and  be  subject  to 
cross-examination ;  but  he  is  not  disqualified  to  be  a  witness."^ 


ROSS  V.  DEMOSS    (1867). 
45  III.  447,  449. 
Lawrence,   J. :     "This  is   a  suit   in  equity,   brought  by   Alexander 
Demoss,  in  the  Livingston  Circuit  Court,  against  Riley  Ross.  Margaret 
Wood,  Daniel  T-  Wood,  and  Benjamin  W.  Gray,  to  have  a  mort- 
gage  satisfied,  and  the  lands  reconveyed  to  complainant.     It  ap- 
pears that  defendant  in  error,  in  April,  1858,  executed  a  mortgage  with 

3 — Compare  the  authorities  cited   in   W.,   §   1910,  and  No.  368,  ante. 


394  SUNDRY  AUXILIARY  RULES.  No.  409. 

a  power  of  sale,  to  secure  to  William  Ross  $68,  on  forty  acres  of  land. 
That  subsequently,  in  September  of  the  same  year,  to  secure  the  fur- 
ther sum  of  $300,  defendant  in  error  executed  a  mortgage  on  another 
tract  of  land,  containing  seventy-five  acres,  to  William  Ross,  with  power 
of  sale.  ...  It  is  alleged  in  the  bill,  that  the  sale  by  Ross  was  not  in- 
tended to  be  a  foreclosure  of  these  mortgages,  but  that  it  was  at  the 
time  agreed  that  defendant  in  error  should  have  further  time  to  pay  and 
redeem  the  lands;  and  that  all  of  the  money  for  which  the  mortgages 
were  given  had  been  fully  paid. 

"On  the  trial  below,  the  evidence  was  conflicting,  but  it  seems  to 
preponderate  in  favor  of  the  decree.  The  weight  of  the  evidence  of 
Garner  is  somewhat  impaired  from  the  fact,  that  he  was  proved  to  have 
been  one  of  the  attorneys  in  the  case,  and  had  a  conditional  fee,  de- 
pendent on  the  result  of  the  suit.  It  is  of  doubtful  professional  pro- 
priety for  an  attorney  to  become  a  witness  for  his  client,  without  first 
entirely  withdrawing  from  any  further  connection  with  the  case;  and  an 
attorney  occupying  the  attitude  of  both  witness  and  attorney  for  his 
client  subjects  his  testimony  to  criticism  if  not  suspicion;  but  where 
the  half  of  a  valuable  farm  depends  upon  his  evidence,  he  places  himself 
in  an  unprofessional  position,  and  must  not  be  surprised  if  his  evidence 
is  impaired.  While  the  profession  is  an  honorable  one,  its  members 
should  not  forget  that  even  they  may  so  act  as  to  lose  public  confidence 
and  general  respect."* 


SUB-TITLE  III. 

OPINION  RULE. 
I.     The  General  Principle.^ 

Thomas  Starkie,  Evidence,  ly^  (1824):  "A  witness  examined  as 
to  facts  ought  to  state  those  only  of  which  he  has  had  personal  knowl- 
edge. ...  It  has  been  said  that  a  witness  must  not  be  examined 
*■"■"  in  chief  as  to  his  belief  or  persuasion,  but  only  as  to  his  knowl- 
edge of  the  fact.  ...  As  far  as  regards  mere  belief  or  persuasion,  which 
does  not  rest  upon  a  sufficient  and  legal  foundation,  this  position  is  cor- 
rect, as  where  a  man  believes  a  fact  to  be  true  merely  because  he  has 
heard  it  said  to  be  so.'"' 

4 — Compare  the  authorities  cited  in  W.,  an  eminent  engineer,  as  to  the  cause  of  a 

§    191 1,    and    No.    370,    ante.  harbor's    filling    up,    "was    matter    of    opin- 

5 — These    first    extracts    are    intended    to  ion,   which   could   be  no  foundation  for  the 

represent    the    various     principles,     past    or  verdict    of   a   jury,    which    was    to    be    built 

prevailing,    sound   or   unsound,    upon   which  entirely    on    facts,    not    opinions") :      "The 

the    Opinion    Rule   has   been    made   to    rest  question    is,    to    what    has    this    decay   been 

by   different  authorities.  owing?     The  defendant   says,   to  this  bank. 

6 — Mansfield,     L.    C.    J.,    in    Folkes    v.  Why?        Because     it     prevents     the     back- 

Chadd,    3    Dougl.    158    (1872)    (it    was    ob-  water.       That    is    matter    of    opinion;    the 

jected   that  the   evidence   of   Mr.    Smeaton,  whole  case  is  a  question   of  opinion,   from 


No.  412.  OPINION  RULE.  395 

Sir   George   Cornewall  Lewis^  Itifluence  of  Authority  in  Matters 
of  Opinion,  i  (1849)  •     "^^  is  true  that  even  the  simplest  sensations  in- 
volve some  judgment;  when  a  witness  reports  that  he  saw  an  object 
*  of  a  certain  shape  and  size,  or  at  a  certain  distance,  he  describes 

something  more  than  a  mere  impression  of  his  sense  of  sight,  and  his 
statement  implies  a  theory  and  explanation  of  the  bare  phenomenon. 
When,  however,  the  judgment  is  of  so  simple  a  kind  as  to  become  wholly 
unconscious,  and  the  interpretation  of  the  appearances  is  a  matter  of 
general  agreement,  the  object  of  sensation  may,  for  our  present  pur- 
pose, be  considered  a  fact.  .  .  .  The  essential  idea  of  opinion  seems  to 
be  that  it  is  a  matter  about  which  doubt  can  reasonably  exist,  as  to 
which  two  persons  can  without  absurdity  think  differently.  The  exist- 
ence of  an  object  before  the  eyes  of  two  persons  would  not  be  a  matter 
of  opinion,  nor  would  it  be  a  matter  of  opinion  that  twice  two  are  four. 
But  when  testimony  is  divided,  or  uncertain,  the  existence  of  a  fact  may 
become  doubtful,  and,  therefore,  a  matter  of  opinion." 


Dr.  Richard  Wuatkly,  Elements  of  Rhetoric,  pt.  I,  c.  II,  §4  (1828)  : 
"[As  to  matter  of  fact  and  matter  of  opinion,]  decidedly  it  is  not  meant, 
at  least  by  those  who  use  language  with  any  precision,  that  there 
^^^  is  any  greater  certainty,  or  more  general  and  ready  agreement, 
in  the  one  case  than  in  the  other;  e.  g.,  that  one  of  Alexander's  friends 
did  or  did  not  administer  poison  to  him,  every  one  would  allow  to  be  a 
question  of  fact,  though  it  may  be  involved  in  inextricable  doubt ;  while 
the  question,  what  sort  of  an  act  that  was,  supposing  it  to  have  taken 
place,  all  would  allow  to  be  a  question  of  opinion,  though  probably  all 
would  agree  in  their  opinion  thereupon. "''^ 

facts  agreed  upon.  Nobody  can  swear  that  would  be  generally  inadmissible  unless  sus- 
it  was  the  cause.  ...  It  is  a  matter  of  tained  by  facts  showing  the  opinion  to  be 
judgment,  what  has  hurt  the  harbor.  .  .  .  true.  ...  I  find  that  the  witnesses  gener- 
A  confusion  now  arises  from  a  misappli-  ally  said  they  thought  the  slave  to  be 
cation  of  terms.  It  is  objected  that  Mr.  unsound,  and  if  they  had  stopped  there 
Smeaton  is  going  to  speak,  not  as  to  facts,  such  testimony  ought  to  have  been  re- 
but as  to  opinion.  That  opinion,  however,  jected;  but  they  go  on  to  fortify  their 
is  deduced  from  facts  which  are  not  dis-  opinions  with  facts  showing  some  foun- 
puted, — the  situation  of  banks,  the  course  dation  for  them,  and  hence  they  were  ad- 
of  tides  and  of  the  winds,  and  the  shift-  missible  and  were  ta  be  compared  with 
ing    of    sands.  ...  I    cannot    believe    that  the  facts  by  the  jury." 

where  the  question  is  whether  a  defect  7 — Campbell,  J.,  in  Kelley  v.  Richard- 
arises  from  a  natural  or  an  artificial  cause,  son,  69  Mich.  436,  37  N.  W.  514  (1888): 
the  opinions  of  men  of  science  are  not  to  "These  cases  are  so  common  that  few  per- 
be  received.  .  .  .  The  cause  of  the  decay  sons  ever  think  that  what  are  rightly  called 
of  the  harbor  is  also  a  matter  of  science.  facts  are  at  the  same  time  no  more  nor 
...  Of  this,  such  men  as  Mr.  Smeaton  less  than  conclusions.  Thus,  impressions 
alone  can  judge.  Therefore  we  are  of  of  cold  or  heat,  light  and  darkness,  size, 
opinion  that  his  judgment,  formed  on  facts,  shape,  distance,  speed,  and  many  personal 
was  very  proper  evidence."  qualities,  physical  and  mental,  are  con- 
O'Neall,  J.,  in  Seibles  v.  Blackhead,  i  stantly  acted  on  as  facts,  although  not 
McMull,  57  (1840):  "It  is  true  that  the  uniformly  judged  by  all  observers,  for  the 
mere  opinion  of  witnesses  who  have  not  simple  reason  that  the  facts  cannot  be  oth- 
the  aid  of  science  to  guide  them  would  crwise  communicated." 
not   have  any   weight    in   such    a  case,   and 


396 


SUNDRY  AUXILIARY  RULES. 


No.  413. 


FENWICK  V.  BELL    (1845). 
I  C.  &  K.  313. 

Case  for  running  foul  of  plaintiff's  ship,  whereby  she  was  damaged, 
and  thereby  prevented  from  completing  her  cargo.    Plea,  not  guilty. 

The  plaintiff's  witnesses  proved  that  the  ships  of  the  plain- 
*■'■'*  tiff  and  defendant  were  respectively  tacking  up  the  river  Thames 
on  a  particular  day;  and  that,  at  the  time  they  got  into  Gravesend- 
reach,  the  plaintiff's  ship  was  on  the  larboard  tack,  and  that  the  ship  of 
the  defendant  was  on  the  same  tack,  following  in  her  wake.  It  appeared 
further,  that,  just  as  the  plaintiff's  ship  had  completed  her  tack  and  was 
putting  about,  and  whilst  she  was  in  that  position  which  is  technically 
called  "in  irons," — that  is,  having  no  steerage-way  upon  her, — she  was 
run  into  by  the  defendant's  ship.  The  master  and  crew  of  the  plain- 
tiff's ship  stated  in  evidence,  that  they  had  done  every  thing  in  their 
power  to  prevent  the  collision ;  and  they  stated  further,  that,  had  the 
defendant's  ship  been  put  about  sooner,  as  she  ought  to  have  been,  the 
collision  would  not  have  taken  place. 

The  master  of  the  Trinity-house  of  Newcastle  was  then  called,  and 
the  learned  counsel  for  plaintiff  proposed  to  ask  him,  whether,  according 
to  the  best  of  his  judgment, — having  heard  the  evidence,  and  admitting 
the  facts  as  proved  by  the  plaintiff  to  be  true, — he  was  of  opinion  that 
a  collision  between  the  two  ships  could  have  been  avoided  by  proper 
care  on  the  part  of  the  defendant's  servants. 

Dundas,  for  the  defendant,  objected,  that  this  question  could  not  be 
put,  inasmuch  as  it  was  the  very  question  which  the  jury  were  to  try. 

CoLTMAN,  J.,  however,  overruled  the  objection,  and  allowed  the  ques- 
tion to  be  put,  on  the  ground  that  it  was  a  question  having  reference 
to  a  matter  of  science  and  opinion.* 


8 — Messrs.  Carrington  and  Kirwan,  note 
in  I  C.  &  K.  313:  "It  seems  to  be  a  mis- 
take to  say  that,  in  putting  such  a  ques- 
tion to  the  witness  as  was  put  in  the  above 
case  of  Fenwick  v.  Bell  [whether  a  colli- 
sion could  have  been  avoided  by  proper 
care]  you  submit  to  his  decision  a  point 
which  the  jury  alone  can  try.  On  the  con- 
trary, it  is  submitted  that  the  object  of  put- 
ting the  question  is  not  at  all  to  decide 
upon  the  fact  itself,  but  to  prove  an  en- 
tirely new  fact,  namely,  the  opinion  of  a 
person  of  competent  skill  as  to  what  might 
or  might  not  have  been  done  by  the  parties 
under  a  given  state  of  circumstances.  The 
jury  are  of  course  to  decide  upon  the  value 
of  this  opinion,  as  well  as  upon  the  value 
of  the  evidence  on  which  it  is  founded;  and 
thus  it  is  plain  that  in  the  end  the  whole 


matter  is  submitted  to  their  consideration, 
and  that  the  only  effect  of  the  opinion  will 
be  to  assist  them  in  judging  of  a  question 
of  which  the  witness  may  reasonably  be 
supposed,  on  account  of  his  professional 
knowledge,  to  have  been  more  competent 
to    judge    than    themselves." 

Danforth,  J.,  in  Snow  v.  R.  Co.,  65  Me. 
231  (1875):  "The  reason  for  its  exclusion 
given  by  counsel,  that  it  would  instruct 
the  jury  as  to  the  amount  of  the  verdict 
to  be  rendered,  would  seem  to  be  a  very 
good  reason  for  its  admission.  Instruc- 
tion is  what  the  jury  want.  They  would 
not  be  bound  by  it  any  more  than  by  other 
testimony,  but  it  would  be  more  or  less 
valuable  in  enabling  them  to  come  to  3 
correct    conclusion." 


No,  414.  OPINION  RULE.  397 


BROWN  V.  COMMONWEALTH    (1878). 
14  Bush  3p8,  405. 

HiNES,  J. :  "Appellant,  chargied  with  willful  murder,  was  tried,  con- 
victed of  voluntary  manslaughter,  and  sentenced  to  the  penitentiary  for 
sixteen  years,  and  from  that  judgment  he  appeals.  The  substance 
of  the  proof  is,  that  appellant  tendered  money  and  demanded  a 
drink  at  the  bar  of  one  Jacob,  and  that  Jacob  and  his  bar-tender,  Snyder, 
both  refused  to  let  appellant  have  any  liquor,  Snyder  assigning  as  a  rea- 
son that  the  father  of  appellant  had  so  requested.  Some  harsh  language 
passed  between  the  parties,  when  appellant  drew  a  pistol  and  snapped 
it  at  Jacob,  and  on  its  failing  to  fire,  appellant,  with  a  declaration  to 
the  effect  that  he  would  get  a  pistol  that  would  kill,  went  a  short  dis- 
tance to  his  dwelling  and  in  a  few  minutes  returned  with  another  pistol, 
which  he  presented  and  snapped  at  Jacob.  At  this  point  Snyder  called 
to  an  officer  to  arrest  appellant,  and  without  further  provocation  he 
turned  and  shot  Snyder,  from  the  effects  of  which  he  died  within  a  few 
days.     The  principal  defense  was  insanity.  .  .  . 

"Some  seventy  witnesses  were  examined  in  the  case,  and  the  larger 
number  of  them,  experts  and  non-experts,  were  permitted  to  express 
their  opinions  as  to  the  sanity  of  the  appellant,  and  of  the  testimony  of  the 
non-experts,  excepted  to  by  counsel  for  appellant,  is  the  following :  ,  .  . 

"D.  P.  Guin  said :  'Have  known  the  accused  since  a  boy,  but  have 
not  been  with  him  much;  had  but  little  to  do  with  him.  From  observa- 
tion of  his  conduct  and  acts,  I  had  no  reason  to  believe  him  insane,  and 
never  heard  anything  of  it.  My  attention  was  not  called  to  it.  He  had 
many  peculiarities.'  J.  J.  Brown  said:  'Am  not  related  to  the  accused; 
have  known  him  since  1849;  had  business  with  him  and  frequent  chats. 
From  habits,  conduct  and  chats  I  never  thought  him  insane ;  have  seen 
peculiarities  in  members  of  his  family,  but  never  had  any  question  as 
to  his  sanity.  I  am  not  an  expert  nor  a  doctor.  My  attention  was  never 
called  to  the  accused's  insanity.'  R.  H.  Monow  said:  'Have  known 
the  accused  all  his  life,  and  have  always  thought  him  sane.  I  am  no 
doctor,  nor  was  my  attention  ever  called  to  his  insanity.'  .  .  .  Judia  Long: 
'I  have  known  the  accused  and  his  family  for  thirty-five  years.  From 
his  manner,  habits,  and  my  personal  knowledge  of  him  I  think  him  as 
sane  as  any  one.'  .  .  .  Many  other  witnesses  were  examined  who  testi- 
fied substantially  as  the  above,  but  we  deem  it  unnecessary  to  give  their 
statements,  as  these  are  sufficient  to  dispose  of  the  objection  made  by 
counsel.  The  question  is,  When,  if  at  all,  will  non-e'xperts  be  permitted 
to  state  in  evidence  an  opinion  as  to  sanity? 

"This  court,  in  Hunt's  Heirs  v.  Hunt.  3  B.  Mon.  577,  expressed  the 
opinion  that  such  evidence  was  incompetent  unless  the  witness  stated 
the  facts  upon  which  the  opinion  was  based,  but  did  not  undertake  to  say 
what  facts  would  be  necessary  to  render  the  expression  of  an  opinion 
competent.  .  .  .  Exactly  what  is  meant  by  the  expression  in  some  cases, 


398  SUNDRY  AUXILIARY  RULES.  No.  414. 

when  such  evidence  has  been  admitted,  that  'the  witnesses  must  detail 
the  facts  upon  which  the  opinion  is  based,'  we  do  not  find  explained. 
If  the  admissibility  of  the  opinion  as  evidence  must  depend  upon  the 
facts  from  which  it  is  formed,  it  is  manifest  that  there  is  a  question  for 
the  Court  antecedent  to  its  introduction,  and  that  to  promulgate  a  gen- 
eral rule  as  to  the  amount  and  quality  of  the  evidence  that  should  satisfy 
the  Court  in  every  case  would  be  impossible.  ...  It  is  not  intended  that 
the  admissibility  of  the  evidence  shall  be  made  to  depend  upon  the  abil- 
ity of  the  witness  to  state  specific  facts  from  which  the  jury  may,  inde- 
pendent of  the  opinion  of  the  witness,  draw  a  conclusion  of  sanity  or 
insanity;  for  it  is  the  competency  of  the  opinion  of  the  witness  that  is 
the  subject  of  inquiry.  The  ability  of  the  witness  to  detail  certain  facts 
of  the  mind  may  add  very  greatly  to  the  weight  of  the  opinion  given 
in  evidence;  but  they  will  not  of  necessity  affect  the  question  of  com- 
petency."^ 


TAYLOR  V.  MONROE    (1875). 
43  Conn.  36,  44. 

Trespass  on  the  case  for  an  injury  from  a  defect  in  a  highway  of 
the  defendant  town.  .  .  .  This  highway  passed  down  a  steep  hill  about 
thirty  rods  in  length,  twenty-five  feet  from  the  foot  of  which  and 
*  forming  part  of  the  highway  was  a  bridge  twelve  feet  in  length, 

and  of  the  same  width,  elevated  four  feet  above  a  stream  which  crossed 
the  highway.  At  the  northerly  end  of  the  bridge  the  highway  was 
so  raised  above  the  adjoining  ground  as  to  endanger  the  public  travel, 
and  on  the  loth  of  August,  1871,  there  was  not  a  good  and  sufficient 
railing  or  fence  on  the  easterly  side  thereof,  and  the  highway  was  then 
and  there  out  of  repair,  all  of  which  was  in  consequence  of  the  negli- 
gence of  the  town  of  Monroe. 

Upon  the  hearing  the  defendants  claimed,  and  offered  evidence  to 
prove,  that  the  highway  was  not  so  raised  as  to  endanger  travel;  that 
no  railing  was  required  to  make  the  same  safe  for  public  travel ;  that 
the  highway  was  an  ancient  one  and  was  constructed  and  maintained  in 
conformity  to  the  experience  of  skilled  road-builders.  The  defend- 
ants placed  upon  the  witness-stand  two  witnesses  who  were  professional 
road-builders  of  twenty-five  years  experience  in  the  business,  and  each 
of  whom  had  seen  and  examined  and  described  the  road  and  bridge  and 
railing  and  their  surroundings  at  the  place  where  the  injury  happened ; 
and  then  the  defendants'  counsel  asked  each  of  them  the  following  ques- 
tions : 

I.  "What  is  you  opinion,  based  upon  the  facts  you  have  testified  to, 
as  to  whether  this  causeway,  at  any  point  north  of  the  railing,  is  so 
raised  above  the  adjoining  ground  as  to  require  a  railing  in  order  to. 
render  public  travel  reasonably  safe?" 

9 — Compare    the  authorities  cited   in    W.,   §   1922. 


Xo.  415.  OPINION  RULE.  399 

2.  "What  is  your  opinion  as  a  skilled  workman  in  the  construction 
of  roads,  as  to  whether  or  not  the  road  from  the  bridge  to  the  foot  of 
the  hill,  supposing  it  to  be  as  it  was  at  the  time  of  the  accident,  was 
reasonably  safe  and  convenient  for  public  travel?" 

3.  "Is  or  not  the  elevation  of  the  embankment  and  the  slope  of  the 
bank,  and  the  depth  of  the  ditch  or  gutter  such,  north  of  the  end  of  the 
pole,  that  if  an  ordinary  vehicle  were  driven  off  the  bank  in  the  ordinary 
mode  of  driving,  it  would  overturn  the  vehicle  or  cause  any  accident?" 

To  each  of  these  questions  the  plaintiff  objected  and  the  court  ex- 
cluded the  same.  .  .  . 

LooMis,  J. :  "The  next  question  is,  whether  the  opinions  of  the  'two 
professional  road-builders  of  twenty-five  years  experience  in  the  busi- 
ness,' who  'had  seen  and  examined  and  described  the  road  and  bridge 
and  railing  and  their  surroundings  at  the  place  where  the  injury  hap- 
pened, ought  to  have  been  received  in  answer  to  the  four  special  in- 
terrogatories mentioned  in  the  record.  If  these  witnesses  were  experts 
and  the  subject  matter  was  proper  for  their  opinion,  it  must  be  conceded 
that  the  evidence  ought  to  have  been  received  in  answer  to  at  least  three 
of  the  questions  stated.  .  .  .  The  rule  as  to  experts  is,  that  'in  cases 
involving  questions  of  science  and  skill,  or  relating  to  some  art  or  trade, 
experts  are  permitted  to  give  opinions ;  the  principle  embraces  all  ques- 
tions except  those,  the  knowledge  of  which  is  presumed  to  be  common 
to  all  men.  So  the  business  which  has  a  particular  class  devoted  to  its 
pursuit,  is  an  art  or  trade  within  the  rule.'  Rochester  &  Syracuse  R.  R. 
Co.  V.  Budlong,  10  Howard's  Pr.  Rep.,  289.  Though  the  rule  as  stated 
is  well  settled,  yet  there  is  often  a  practical  difficulty  in  applying  it 
to  the  facts  and  circumstances  of  the  particular  case,  especially  where 
the  general  subject  matter,  as  in  this  case,  is  open  to  the  observation 
of  many  persons.  If  this  case  falls  pretty  near  the  line,  we  think  it  is 
clearly  on  that  side  of  the  line  that  permits  expert  testimony.  .  .  . 
The  true  test  of  the  admissibility  of  such  testimony  is  not  whether 
the  subject  matter  is  common  or  uncommon,  or  whether  many  persons 
or  few  have  some  knowledge  of  the  matter,  but  it  is  whether  the  witnesses 
offered  as  experts  have  any  peculiar  knowledge  or  experience,  not  common 
to  the  world,  which  renders  their  opinions  founded  on  such  knowledge  or 
experience  any  aid  to  the  Court  or  jury  in  determining  the  questions  at 
issue.  In  the  case  at  bar  the  plaintiff  claims  that  'persons  who  use  roads, 
and  not  those  that  build  them,  are  the  proper  experts.'  The  similar  objec- 
tion suggested  in  the  case  just  cited  would  have  a  better  foundation 
than  it  has  here,  because  persons  who  use  roads  do  not  necessarily  have 
their  attention  called  to  points  of  safety  or  danger  in  the  construction 
of  the  road ;  and  moreover  the  users  of  a  road  do  not  constitute  any 
recognized  class  devoted  to  any  business,  trade,  art  or  profession,  con- 
nected with  such  use,  which  could  give  any  value  to  their  opinions. 
The  road-builders  must  of  necessity  adapt  their  work  to  the  purposes 
for  which  it  is  intended,  to-wit,  the  safety  and  convenience  of  public 
travel,  and  in  so  doing  they  must  keep  in  mind  all  the  elements  that 


400  SUNDRY  AUXILIARY   RULES.  No.  415. 

enter  into  the  question  of  safety  and  convenience,  and  thereby  they  ac- 
quire a  peculiar  knowledge  and  experience  that  gives  special  value  to 
their  opinions  upon  the  subject." 


STATE  V.  PIKE    (1870). 

4P  N.  H.  423. 

Doe,  J. :  "Opinions,  like  other  testimony,  are  competent  in  the  class 
of  cases  in  which  they  are  the  best  evidence,  as  when  a  mere  description 
without  opinion  would  generally  convey  a  very  imperfect  idea 
of  the  force,  meaning,  and  inherent  evidence  of  the  things  de- 
scribed. Like  other  testimony,  opinions  are  incompetent  in  the  class 
of  cases  in  which  they  are  not  the  best  evidence,  as  when  they  are 
founded  on  hearsay  or  on  evidence  from  which  the  jury  can  form  an 
opinion  as  well  as  the  witness.  A  rule  that  opinions  are  or  are  not  evi- 
dence must  necessarily  be  in  conflict  with  the  rule  which  admits  the  best 
evidence.  A  constant  observer  of  the  trial  of  cases,  examining  the  tes- 
timony for  the  purpose  of  ascertaining  how  many  opinions  are  received 
and  how  many  rejected,  w^ill  find  ten  of  the  former  as  often  as  he  finds 
one  of  the  latter;  and  if  he  is  very  critical,  he  will  find  the  ratio  much 
greater  than  that.  Opinions  are  constantly  given.  A  case  can  hardly 
be  tried  without  them.  Their  number  is  so  vast  and  their  use  so  habitual 
that  they  are  not  noticed  as  opinions  distinguished  from  other  evidence. 
.  .  .  The  cases  of  identity  of  persons  and  things  and  of  handwriting 
having  been  named  in  the  English  books  as  illustrations  of  the  compe- 
tency of  opinions,  those  cases  were  supposed  to  be  peculiar  exceptions 
to  the  general  rule,  whereas  they  are  mere  instances  of  the  application 
of  the  general  rule  which  admits  the  best  evidence.  This  general, 
natural,  fundamental,  comprehensive,  and  chief  rule  of  evidence  was 
gradually  ignored,  and  special  and  artificial  rules  were  substituted ;  or, 
if  there  was  not  an  absolute  substitution,  there  was  such  a  removal  of 
emphasis  from  the  general  rule  to  the  special  rule  that  the  former  lost 
the  overshadowing  influence  and  control  which  belong  to  it.  .  .  .  When 
the  fact  that  some  opinions  are  not  the  best  evidence  had  been  magnified 
and  turned  into  the  so-called  general  rule  of  law  that  opinions  are  not 
evidence,  and  the  rule  admitting  the  best  evidence  was  supplanted  by 
it,  it  was  thought  necessary  to  find  a  special  precedent  for  every  opinion 
before  it  could  be  admitted.  The  judgments  of  Westminster  Hall  were 
searched  to  find  a  decision  that  an  opinion  as  to  the  value  of  property 
was  competent,  and  to  find  another  decision  that  an  opinion  as  to  sanity 
was  competent.  No  such  decisions  could  be  found.  None  had  ever 
been  made ;  because  such  opinions  had  always  been  received  as  unques- 
tionably competent.  The  reason  of  the  failure  to  find  the  decisions 
was  not  understood  here.  The  failure  was  taken  as  conclusive  proof 
that  in  England  the  opinions  were  not  admitted.  When  an  Ameri- 
can mistake  of  this  magnitude  is  discovered,  it  is  fit  to  be  corrected  at 


No.  417. 


OPINION  RULE. 


401 


once.  To  return  to  the  true  principle  is  not  to  change  the  law,  but  to 
cease  violating  the  law ;  or,  putting  it  in  a  milder  form,  to  allow  that 
which  is  the  law  de  facto  to  yield  to  that  which  is  the  law  de  jure."^ 


2.    Applications  of  the  Rule  to  Specific  Topics  of  Testimony. 

HARDY  V.  MERRILL    (1875). 
56  N.  H.  216,  241. 

Appeal,  by  William  H.   Hardy   against  Isaac   D.  Merrill,  from  the 

decree  of  the  judge  of  probate  approving  and  allowing,  in  solemn  form, 

the  will  of  Joseph  Hardy,  deceased.     Said  will  was  dated  July  26, 

•  1870.  .  .  .  The  issues  were  in  common  form.  In  the  first,  the 
executed  alleged  that  the  said  Joseph  Hardy  was  of  sound  mind ;  and  in 
the  second,  he  alleged  that  said  will  was  not  obtained  by  undue  influ- 
ence :  upon  both  of  which  allegations  issue  was  taken  by  the  appellant. 
.  .  .  Solomon  Hardy,  a  brother  of  the  testator,  was  called  as  a  wit- 
ness by  the  appellant,  and  the  following  questions  among  others,  were 
put  to  him.  I.  "Being  a  brother  of  Joseph  Hardy,  from  your  observa- 
tion of  his  appearance  and  conduct  at  the  time  you  saw  him  at  your 
house  in  June,  1869,  state  whether  or  not,  in  your  opinion,  he  was,  at 
the  time,  of  sound  and  disposing  mind  and  memory."  2.  "Being  a 
brother  of  the  testator,  from  what  you  had  observed  as  to  his  conversa- 


I — Ou'en,  J.,  in  Railroad  Co.  v.  Schuh, 
43  Oh.  St.  270,  283,  1  N.  E.  324  (1885): 
"It  must  not  be  supposed  that  there  is 
any  rule  of  evidence  concerning  the  opin- 
ions of  witnesses  which  is  peculiar  to 
fences,  highways,  bridges,  or  steamboats, 
or  to  any  other  special  subjects  of  inves- 
tigation. Where  the  facts  concerning  their 
condition  cannot  be  made  palpable  to  the 
jurors  so  that  their  means  of  forming  opin- 
ions are  practically  equal  to  those  of  the 
witnesses,  opinions  of  such  witnesses  may 
be  received,  accompanied  by  such  facts 
supporting  them  as  they  may  be  able  to 
place   intelligently  before  the  jury." 

Endicott,  J.,  in  Cam.  v.  Sturtivant,  117 
Mass.  122  (1875):  "[The  condition  is  that] 
the  subject  matter  to  which  the  testimony 
relates  cannot  be  reproduced  or  described 
to  the  jury  precisely  as  it  appeared  to  the 
witness  at  the   time." 

Peck,  J.,  in  Bates  v.  Sharon,  45  Vt.  481 
(1873):  "[Opinion  is  admitted]  where  the 
facts  are  of  such  a  character  as  to  be  in- 
capable of  being  presented  with  their  proper 
force  to  any  one  but  the  observer  him- 
self, so  as  to  enable  the  triers  to  draw 
a  correct  or  intelligent  conclusion  from 
them  without  the  aid  of  the  judgment  or 
opinion    of    the    witness    who    has    had    the 


benefit    of    personal    observation." 

Gibson,  J.,  in  Cornell  v.  Green,  10  S.  & 
R.  16  (1823):  "It  is  a  good  general  rule 
that  a  witness  is  not  to  give  his  impres- 
sions, but  to  state  the  facts  from  which 
he  received  them,  and  thus  leave  the  jury 
to  draw  their  own  conclusion;  and  wher- 
ever the  facts  can  be  stated,  it  is  not  to 
be  departed  from.  But  every  man  must 
judge  of  external  objects  according  to  the 
impression  they  make  on  his  senses;  and 
after  all,  when  we  come  to  speak  of  the 
most  simple  fact  which  we  have  witnessed, 
we  are  necessarily  guided  by  our  impres- 
sions. There  are  cases  where  a  single  im- 
pression is  made  by  induction  from  a  num- 
ber of  others,  as,  where  we  judge  whether 
a  man  is  actuated  by  passion,  we  are  de- 
termined by  the  expression  of  his  counte- 
nance, the  tone  of  his  voice,  his  gestures, 
and  a  variety  of  other  matters;  yet  a  wit- 
ness speaking  of  such  a  subject  of  inquiry 
would  be  permitted  directly  to  say  whether 
the  man  was  angry  or  not.  ...  I  take 
it  that  wherever  the  facts  from  which  a 
witness  received  an  impression  are  too 
evanescent  in  their  nature  to  be  recollected, 
or  are  too  complicated  to  be  separately 
and  distinctly  narrated,  his  impression  from 
these    facts    become   evidence." 


402  OPINION  RULE.  No.  417. 

tion,  conduct,  and  general  deportment  as  to  all  subjects,  up  to  July  26, 
1870,  have  you  any  opinion  as  to  his  sanity  at  that  date,  and,  if  so, 
what  is  it?"  The  referees  excluded  these  questions,  and  the  appellant 
excepted.  .  .  . 

Foster,  C.  J. :  ''It  would  be  merely  a  repetition  of  the  historical  part 
of  Judge  Doe's  opinion,  in  State  v.  Pike,  49  N.  H.  421-423,  if  I  were 
to  relate  how,  after  the  eminent  jurists,  who  presided  in  our  courts  the 
years  1811  and  1833,  had  all  passed,  off  the  stage,  the  'Massachusetts 
exception'  gradually  worked  into  favor  in  New  Hampshire,  it  having 
been  erroneously  declared  by  the  Alassachusetts  courts  to  be  an  expres- 
sion of  the  English  common  law.  ...  A  tolerably  careful  investigation 
authorizes  me  to  repeat  the  language  of  Judge  Doe,  that  'in  England  no 
express  decision  of  the  point  can  be  found,  for  the  reason  that  such  evi- 
dence has  always  been  admitted  without  objection.  It  has  been  uni- 
versally regarded  as  so  clearly  competent,  that  it  seems  no  English 
lawyer  has  ever  presented  to  any  court  any  objection,  question,  or  doubt 
in  regard  to  it.'  State  v.  Pike,  49  N.  H.  408,  409.  I  presume,  however, 
it  will  not  be  denied  that  in  the  ecclesiastical  courts,  where  questions 
of  testamentary  capacity  are  generally  tried,  such  opinions  have  always 
been  received.  .  .  .  The  practice  in  the  courts  of  the  common  law  has 
been  universal  and  unwavering  in  the  same  direction;  and  'the  num- 
ber of  English  authorities  is  limited  only  by  the  number  of  fully  reported 
cases  in  which  the  question  of  sanity  has  been  raised.'  State  v.  Pike, 
49  N.  H.  409.  .  .  . 

"Courts  and  text-writers  all  agree  that,  upon  questions  of  science 
and  skill,  opinions  may  be  received  from  persons  specially  instructed 
by  study  and  experience  in  the  particular  art  or  mystery  to  which  the 
investigation  relates.  But  without  reference  to  any  recognized  rule  or 
principle,  all  concede  the  admissibility  of  the  opinions  of  non-profes- 
sional men  upon  a  great  variety  of  unscientific  questions  arising  every 
day,  and  in  every  judicial  inquiry.  These  are  questions  of  identity,  hand- 
writing, quantity,  value,  weight,  measure,  time,  distance,  velocity,  form, 
size,  age,  strength,  heat,  cold,  sickness,  and  health ;  questions,  also,  con- 
cerning various  mental  and  moral  aspects  of  humanity,  such  as  dis- 
position and  temper,  anger,  fear,  excitement,  intoxication,  veracity,  gen- 
eral character,  and  particular  phases  of  character,  and  other  conditions 
and  things,   both   moral   and  physical,  too  numerous  to  mention.  .  .  . 

"Opinions  concerning  matters  of  daily  occurrence,  and  open  to  com- 
mon observation,  are  received  from  necessity ;  and  any  rule  which  ex- 
cludes testimony  of  such  a  character,  and  fails  to  recognize  and  submit 
to  that  necessity,  tends  to  the  suppression  of  truth  and  the  denial  o£ 
justice.  The  ground  upon  which  opinions  are  admitted  in  such  cases  is, 
that,  from  the  very  nature  of  the  subject  in  issue,  it  cannot  be  stated 
or  described  in  such  language  as  will  enable  persons,  not  eye-witnesses, 
to  form  an  accurate  judgment  in  regard  to  it.  How  can  a  witness  de- 
scribe the  weight  of  a  horse?  or  his  strength?  or  his  value?  Will  any 
description  of  the  wrinkles  of  the  face,  the  color  of  the  hair,  the  tones 


No.  417.  SUNDRY   APPLICATIONS.  403 

of  the  voice,  or  the  elasticity  of  step,  convey  to  a  jury  any  very  accurate 
impression  as  to  the  age  of  the  person  described?  And  so,  also,  in  the 
investigation  of  mental  and  psychological  conditions, — because  it  is  im- 
possible to  convey  to  the  mind  of  another  any  adequate  conception  of 
the  truth  by  a  recital  of  visible  and  tangible  appearances, — because  you 
cannot,  from  the  nature  of  the  case,  describe  emotions,  sentiments,  and 
affections,  which  are  really  too  plain  to  admit  of  concealment,  but,  at 
the  same  time,  incapable  of  description, — the  opinion  of  the  observer  is 
admissible  from  the  necessity  of  the  case ;  and  witnesses  are  permitted 
to  say  of  a  person,  'He  seemed  to  be  frightened' ;  'he  was  greatly  excited' ; 
'he  was  much  confused' ;  'he  was  agitated' ;  'he  was  pleased' ;  'he  was 
angry.'  .  .  .  All  evidence  is  opinion  merely,  unless  you  choose  to  call  it 
fact  and  knowledge  as  discovered  by  and  manifested  to  the  observation 
of  the  witness.  .  .  .  And  it  seems  to  me  quite  unnecessary  and  irrelevant 
to  crave  an  apology  or  excuse  for  the  admission  of  such  evidence,  by 
referring  it  to  any  exceptions  (whether  classified,  or  isolated  and  arbi- 
trary) to  any  supposed  general  rule,  according  to  the  language  of  some 
books  and  the  custom  of  some  judges.  There  is,  in  truth,  no  general 
rule  requiring  the  rejection  of  opinions  as  evidence.  A  general  rule 
can  hardly  be  said  to  exist,  which  is  lost  to  sight  in  an  enveloping  mass 
of  arbitrary  exceptions.  .  .  .  Suppose,  the  day  before  or  a  week  before 
the  death,  a  lawyer,  farmer,  and  blacksmith  saw  the  deceased,  and  had 
an  opportunity  to  see  whether  he  appeared  to  be  well  or  sick :  suppose 
the  lawyer  is  asked,  'Did  you  observe  any  indications  of  his  being  well 
or  sick?'  and  the  answer  to  be,  'I  observed  no  indication  of  his  being 
sick ;  he  appeared  as  well  as  usual,  as  well  as  I  ever  saw  him" ;  suppose 
the  farmer  is  asked,  'Did  you  notice  anything  unusual  in  his  appearance 
or  conduct?'  and  the  answer  is,  'No,  I  did  not';  suppose  the  blacksmith 
is  asked,  'In  your  opinion  was  he  well  or  sick?'  and  the  answer  is,  'In 
my  opinion  he  was  perfectly  well ;  his  spirits,  looks,  and  behavior,  all 
showed,  in  my  opinion,  freedom  from  weakness  and  pain' ;  what  legal 
distinction  can  be  drawn  between  these  questions  and  answers,  to  make 
one  competent,  and  either  of  the  others  incompetent?  It  is  all  opinion, 
and  nothing  but  opinion,  of  the  man's  physical  condition  in  relation  to 
health  or  disease.  The  use  or  the  omission  of  the  word  'opinion,'  in 
either  of  those  questions  or  answers,  does  not  affect  the  character  of  the 
testimony  in  the  slightest  degree.  Calling  such  testimony  'opinion'  does 
not  make  it  'opinion' ;  and  calling  it  something  else  does  not  make  it 
something  else.  .  .  . 

"Now  let  us  imagine  a  scene  that  might  very  probably  be  exhibited  in 
any  court  where  the  Massachusetts  rule  prevails.  One  witness  says: 
'He  did  not  appear  as  usual ;  he  did  not  appear  natural.'  'Very  well,* 
says  a  learned  barrister,  'very  well,  Mr.  Witness.  You  may  say  that, — 
that  is  quite  regular, — that  is  your  opinion.  Now  tell  us  in  what  respect 
he  did  not  appear  "as  usual"  or  "natural."'  'Well,  I  can't  describe  it, 
but  I  should  call  it  wandering,  delirious ;  he  was  incoherent  in  his  talk.' 
'Very  well,  ]\Ir.  Witness,  you  acquit  yourself  like  a  sensible  man.     Now 


404 


OPINION    RULE. 


No.  417. 


tell  the  jury  whether  in  your  opinion  he  was  then  of  sound  mind.'  '1 
object,'  thunders  the  learned  barrister  on  the  other  side.  'I  object," 
thunders  the  opposing  junior.  'Counsel  know  better ;  it  is  an  insult  and 
an  outrage  to  put  such  a  question.'  .  .  ,  The  witness  is  confounded.  The 
jury  are  confounded.  Everybody  is  confounded, — except  those  who  un- 
derstand that  'incoherence  of  thought'  and  'delirium,'  vulgarly  called 
'wandering,'  is  not  a  state  of  mental  unsoundness,  is  not  mental  disease ; 
and  that  'as  usual'  or  'natural'  is  not  a  condition  of  mental  health. 
Whether  it  is  such  condition  or  not  is  a  question  then  solemnly  debated. 
...  At  the  close  of  the  scene  which  I  have  described,  not  a  man  of  the 
laity  goes  out  of  the  room  without  being  disgusted  with  this  exhibition 
of  the  law  as  a  system  of  arbitrary  rules,  that  ignoring  all  legal  ideas 
decides  upon  a  distinction  purely  verbal.  And  why  should  not  the  laymen 
be  disgusted  with  the  senseless  subtlety  which  permits  one  party  to  show 
by  his  witness  that  a  testator  'appeared  perfectly  natural,'  and  forbids 
the  adverse  party  to  offer  the  testimony  of  another  witness  that  'he  didn't 
appear  to  be  in  his  right  mind'  ?  .  ,  .  The  selection  of  the  phraseology 
in  which  such  an  opinion  may  be  expressed,  and  that  in  which 
it  cannot  be  uttered,  depends  on  no  legal  principle,  but  on  the 
mere  whim  of  the  Court.  Such  an  arbitrary  and  senseless  choice  or 
rejection  of  terms  in  which  to  express  an  admissible  opinion  is  mere, 
sheer  logomachy,  a  waste  of  precious  time  given  us  for  better  purposes, 
a  verbal  quibble  unworthy  of  the  law  and  calculated  to  bring  it  into 
contempt."^ 


1 — The  following  cases  illustrate  the 
peculiar  application  of  the  rule  to  this 
topic  in  Massachusetts,  in  New  York,  and 
in  Georgia: 

Nash  V,  Himt,  ii6  Mass.  237,  251 
(1874);  Wells,  J.:  "Objection  is  made 
to  the  testimony  of  the  witness  Beal,  who 
had  conversations  with  the  testator,  and 
who  was  allowed  to  state  that  at  the  last 
interview  before  the  date  of  the  will,  he 
'observed  no  incoherence  of  thought  in 
the  testator,  nor  anything  unusual  or 
singular  in  respect  to  his  mental  condi- 
tion.' We  do  not  understand  this  to  be 
the  giving  of  an  opinion  as  to  the  con- 
dition of  the  mind  itself,  but  only  of  its 
manifestations  in  conversation  with  the 
■witness.  So  far  as  his  mental  condition 
was  manifested  by  the  witness  by  that 
interview,  in  conversation,  looks  or  de- 
meanor, he  could  properly  state,  as  a 
matter  of  observation,  whether  it  was  in 
the  usual  or  natural  manner  of  the  tes- 
tator  or   otherwise." 

Paine  v.  Aldrich,  133  N.  Y.  544,  547, 
30  N.  E.  725  (1892);  the  following  ques- 
tion was  held  improper:  "Taking  into 
consideration  these  facts  that  you  have 
stated  here  in  your  testimony  to-day, 
■which   you  learned   from   your  contact   with 


Mr.  Paine  and  from  his  conversaticns 
with  you,  what  impression  did  he  give  you 
as  to  whether  or  not  he  was  rational  or  ir- 
irrational?"  while  this  one  was  pronounced 
unexceptionable:  "From  the  conversations 
you  had  with  him  and  from  his  actions, 
his  acts  in  your  presence,  were  those  con- 
versations or  those  acts  those  of  a  rational 
or   an  irrational   man?" 

Maynard,  J.:  "The  trial  court  applied 
the  correct  rule  in  regard  to  this  class  of 
evidence.  The  witness  was  a  layman  and 
could  not  properly  give  an  opinion  as  to 
the  mental  capacity  of  the  grantor,  or 
as  to  whether  he  was  rational  or  irra- 
tional, even  when  such  opinion  might 
be  based  upon  specific  acts  and  conver- 
sations, and  his  personal  observations. 
He  could  state  the  acts  and  conversa- 
tions of  which  he  had  personal  knowl- 
edge, and  then  be  permitted  to  say  wheth- 
er, in  his  judgment,  such  acts  and  con- 
versations were  rational  or  irrational,  or 
were  those  of  a  rational  or  irrational  per- 
son. This  is  the  extent  to  which  any 
of   the  cases   have  gone." 

Welch  V.  Stipe,  95  Ga.  762,  22  S.  E. 
670  (189s);  the  test  is:  "Before  the  opin- 
ion of  a  non-expert  witness  can  be  consid- 
ered it  must  appear  not  only  that  the  wit- 


No.  418.  SUNDRY   APPLICATIONS,  405 

KEMPSEY  V.  McGINNIS  (1870). 

21  Mich.  J2J,  i^p. 

This  case  was  brought  into  the  circuit  court  for  the  county  of  Kala- 
mazoo, by  the  appeal  of  Mary  Kempsey  from  the  judgment  of  the  pro- 
bate court  of  that  county,  allowing  the  will  of  Thomas  Patterson. 
41»  jj^g  issue  formed  in  the  circuit  court  was  tried  by  a  jury,  who 
rendered  a  verdict  for  the  proponents.  The  questions  for  review  in  this 
court  arise  upon  the  rulings  of  the  circuit  judge  on  the  admission  and 
rejection  of  evidence  as  to  the  testamentary  capacity  of  the  testator. 
Dr.  William  Mottram  was  called  by  the  appellant  and  contestant,  and 
after  testifying  to  facts  within  his  personal  observation,  as  to  the  condi- 
tion of  the  testator,  stated  that  he  heard  Dr.  Abbott  testify,  and  recol- 
lected the  description  he  gave  of  Patterson,  and  that  he  heard  Eckard. 
testify,  except  a  part  of  the  cross-examination.     He  was  then  asked: 

1.  Question:  "Assuming  the  testimony  of  the  witness  as  true  in  refer- 
erence  to  the  condition  of  Patterson  during  the  days  they  mentioned, 
what,  in  your  opinion,  was  his  capacity  to  make  a  will,  or  as  to  his  being 
of  sound  and  disposing  mind?"  This  question  was  objected  to  by  the 
appellees  as  incompetent  and  irrelevant.  The  Court  sustained  the  ob- 
jection. To  which  ruling  and  decision  the  counsel  for  appellant  duly 
excepted. 

2.  Question:  "Assum.ing  the  testimony  of  Eckard  in  regard  to  the 
condition  of  Patterson  during  the  latter  part  of  Thursday  and  Thurs- 
day night,  and  Friday  and  Friday  night,  including  his  conversation  and 
what  he  did,  to  be  true ;  and  assuming  the  testimony  of  Dr.  Abbott  in 
regard  to  his  symptoms  from  Friday  morning  to  the  time  you  went 
there,  to  be  true,  including  your  own  observation  on  Saturday,  what  is 
your  opinion  as  to  Patterson  being  of  sound  disposing  mind  and  memory 
on  Friday  morning,  so  as  to  be  able  to  transact  business  continuously 
and  understandingly  from  nine  until  eleven  o'clock?"  This  question  was 
objected  to  by  the  counsel  for  appellees  on  the  ground  of  irrelevancy  and 
incompetency,  and  it  was  argued  that  the  answer  to  the  question  would 
take  the  question  at  issue  from  the  jury,  and  that  an  expert  cannot  be 
allowed  to  give  an  opinion  upon  facts  that  were  not  under  his  own  ob- 
servation. The  Court  sustained  the  objection.  To  which  ruling  the 
counsel  for  the  appellant  duly  excepted. 

3.  Question:  "Assuming  that  the  deceased,  Thomas  Patterson,  was  a 
man  sixty-three  years  of  age.  of  thin  chest,  and  weak  physical  frame, 
and  stooping;  that  he  was  attacked  the  12th  of  December,   1865.  with 

ness   has   the    opportunity    of   learning    the  cated.      .      .      .      But   where    [as   here]    she 

facts  upon   which  the  opinion  is  predicated,  neither    states   the    facts   coming   under    her 

but    it    must    appear    that    the    opinion    was  observation   nor   states   that   the  opinion   ex- 

in    fact   based    upon    the    facts   and  circum-  pressed    is    the   result    of   such    observation, 

stances   so   ascertained,   and   not  upon    bare  there    is    no    possible    theory    upon    which 

conjecture;    and,    in    addition     to    this,    it  it  can  be  received  in  evidence." 
must  appear  that  the  witness,  in  the  expres-  Compare    the    authorities     cited     in     W., 

sion     of    the     opinion,     speaks    with     refer-  §  1938. 
ence   to   the   facts   upon    which    it    is   predi- 


406  OPINION  RULE.  No.  418. 

pleuro-pneumonia ;  that  on  the  afternoon  of  Thursday,  the  14th  of  De- 
cember, he  was  in  great  pain  and  suffering,  breath  short,  and  through 
that  night  the  pain  and  suffering  and  short  breathing  continued,  with 
much  thirst,  Avith  his  mind  wandering  and  flighty,  running  from  one 
subject  to  another,  his  face  pale  and  yellowish,  purple  under  his  eyes, 
that  he  was  sleepless,  and  yet  in  a  drowsy  condition  throughout  the  night, 
muttering  and  talking  to  himself,  insisting  that  his  horses  were  sick, 
when  in  truth,  they  were  not  sick;  that  on  Friday  morning  he  suffered 
and  complained  of  pain,  short  breath,  and  much  thirst,  taking  no  notice 
of  a  person  whom  he  himself  had  called  in ;  that  he  was  on  the  same 
morning,  at  about  nine  o'clock,  found  by  a  physician  who  examined  him, 
a  very  sick  man,  in  great  pain,  short  breathing,  not  much  expectoration, 
only  about  a  gill  during  the  day,  and  that  of  a  brownish  color;  skin 
neither  hot  nor  cold ;  that  his  condition  remained  so  during  that  day ; 
that  on  Saturday  morning  he  was  worse ;  that  on  examination  of  him 
by  you  on  Saturday  afternoon,  his  lungs  were  found  in  the  second  stage 
of  that  disease,  with  little  or  no  expectoration  then,  and  no  pain,  but 
complained  of  having  suffered  great  pain,  breath  short,  voice  bronchial, 
and  lying  in  a  state  of  stupor,  except  when  aroused  by  a  question  put 
to  him,  and  then  immediately  subsiding  into  stupor  again,  with  skin 
cool,  feet  and  hands  cold,  ankles  and  wrists  clammy,  and  face  and  ex- 
tremities somewhat  livid,  and  that  he  died  about  eleven  o'clock  that 
night,"*"  what  is  your  opinion  as  to  Patterson  being  of  sound  disposing 
mind  and  memory  on  Friday  morning,  so  as  to  be  able  to  transact  busi- 
ness from  nine  to  eleven  o'clock?"  The  question  was  objected  to  by 
the  appellees  on  the  following  grounds:  ist.  The  question  assumes  facts 
of  which  there  is  no  proof.  2d.  It  asks  the  opinion  of  the  witness  upon 
the  principal  question  to  be  found  by  the  jury — that  is,  the  soundness  of 
the  mind  of  the  testator.  The  objection  was  sustained  by  the  Court 
upon  the  second  ground.^  To  which  ruling  the  appellant  duly  excepted. 
Dr.  Foster  Pratt  was  sworn  for  appellant,  and  testified  that  he  had 
heard  nearly  all  the  testimony  given  by  Eckard,  Drs.  Mottram  and  Ab- 
bott. The  same  hypothetical  question  to  the  "*"  with  the  following  addi- 
tion:  "In  your  opinion,  was  Patterson,  on  the  morning  of  the  15th,  the 
day  before  his  death,  and  during  the  forenoon  of  that  day,  capable  of 
planning  and  executing  such  a  paper  as  is  here  offered  as  his  will," 
was  then  put  to  the  witness.  This  question  was  objected  to  by  the 
appellees  on  the  ground  that  it  calls  for  the  opinion  of  the  witness  on  a 
fact  to  be  found  by  the  jury.  Objection  sustained  by  the  Court.  To 
which  ruling  the  appellant  duly  excepted.  The  same  hypothetical  ques- 
tion to  the  "*"  with  the  following  addition :  "In  your  opinion,  was  Pat- 
terson, at  and  during  the  time  above  noted,  in  a  physical  and  mental  con- 
dition to  transact  any  business  requiring  an  exercise  of  the  judgment, 
the  reasoning  faculties,  and  a  consecutive  continuation  of  thought,"  was 
then  put  to  the  witness.     This  question  was  objected  to  by  the  appellees 

I — The   ruling   on   appeal   as   to   the  first        of  the  question)    is  set  out  post,   No.   431. 
of  these   objectlions   (the  hypothetical   form 


No.  418.  SUNDRY   APPLICATIONS.  407 

on  the  same  ground  as  the  last.  The  Court  sustained  the  objection,  and 
the  appellant  duly  excepted. 

Christiancy,  J. :  "To  what  extent  and  in  what  manner  the  mind  of 
the  testator  was  affected  by  the  disease,  or  what  was  his  mental  condi- 
tion, was  a  question  of  fact,  upon  which  it  was  competent  for  the  pro- 
fessional witnesses  to  express  their  opinions.  But  what  degree  of  men- 
tal capacity  is  necessary  to  enable  a  testator  to  make  a  valid  will,  to  what 
extent  and  with  what  degree  of  perfection  he  must  understand  the  will 
and  the  persons  and  property  affected  by  it,  or  to  what  extent  his  mind 
must  be  impaired  to  render  him  incapable,  is  a  question  of  law  exclu- 
sively for  the  court,  and  with  which  the  witnesses  have  nothing  to  do. 
And  it  is  a  question  of  law  of  no  little  difficulty,  which  calls  for  the 
highest  skill  of  competent  jurists,  and  upon  which  the  ablest  Courts  are 
not  entirely  agreed.  .  .  .  And  if — as  common  experience  has  shown,  and 
as  courts  have  often  remarked — opinions  of  professional  witnesses  upon 
such  questions  have  become  of  little  practical  value  upon  trials,  from  the 
almost  universal  conflict  between  those  called  upon  the  different  sides — 
and  this  upon  questions  pertaining  to  their  own  peculiar  profession — such 
opinions  must  be  rendered  utterly  useless,  and  become  a  source  of  error 
and  confusion,  if  the  professional  witness  is  allowed  to  fix  his  own  legal 
standard  of  testamentary  capacity,  thus  mixing  up  in  the  minds  of  the 
jury  his  conclusions  upon  matters  of  law  of  which  he  is  ignorant,  with 
his  conclusions  from  facts  pertaining  to  his  profession,  which  he  claims 
to  understand,  while  his  professional  brother,  testifying  on  the  other  side, 
equally  competent,  comes  to  directly  opposite  conclusions  from  the  same 
facts.  Besides,  if  each  witness  is  allowed  to  fix  his  own  legal  standard 
of  testamentary  capacity,  no  two  of  them  would  be  likely  to  fix  upon 
the  same,  and  there  may  be  an  apparent  agreement  while  they  differ  in 
fact,  and  an  apparent  conflict  when  there  is  a  real  coincidence  in  opinion, 
and  the  jury  have  no  means  of  knowing  the  real  meaning  of  the  wit- 
nesses or  judging  of  the  value  of  their  testimony. 

"It  may  be  urged  in  reply  to  this,  that  the  confusion  arising  from  al- 
lowing the  witnesses  to  answer  questions  involving  their  opinion  of  the 
legal  capacity  of  a  party  to  make  a  will,  may  be  cleared  up  by  a  cross- 
examination,  ascertaining  what,  in  his  opinion,  constitutes  such  capacity, 
and  that  any  error  in  this  respect  may  be  corrected  by  the  court  in  his 
charge,  or  otherwise.  But  it  seems  to  be  much  wiser,  wherever  it  is 
practicable,  to  exclude  the  improper  question,  and  avoid  the  confusion 
altogether,  than  to  admit  it  first,  and  then  undertake  to  get  rid  of  its 
effects,  an  experiment  which  is  never  wholly  successful.  ...  It  would 
have  been  much  fairer,  more  in  accordance  with  principle,  and  much 
less  in  the  nature  of  leading  questions  to  have  put  the  questions  in  such 
a  manner  as  to  call  only  for  an  opinion  of  what  the  real  state  of  the 
testator's  mind  was,  how  much  intelligence  he  possessed,  how  far  he 
was  capable  of  understanding  the  nature  and  situation  of  his  property, 
liis  relation  to  others,  and  the  reasons  for  giving  or  withholding  his 
bounty  as  to  any  of  them,  etc.,  than  to  ask  them  whether  he  had  a  dis- 


■408  OPINION  RULE.  No.  418. 

posing  mind  and  memory,  or  whether  he  was  capable  of  making  a  will. 
The  course  I  have  suggested  as  the  true  one,  was  adopted  by  the  pro- 
pounders  in  their  examination  of  professional  witnesses,  and  by  the  con- 
testants also,  in  some  of  their  questions  which  were  not  objected  to  by 
the  proponents  of  the  will.  .  .  .  These  questions  were,  whether  from  the 
conversation  they  had  with  him,  and  from  what  he  then  saw  of  him,  he 
was  capable  of  understanding  a  document  of  any  considerable  length  if 
it  had  been  read  to  him ;  also,  what  capacity  the  testator  had,  and 
whether,  in  the  opinion  of  the  witness,  the  testator  was  at  the  time,  ca- 
pable of  holding  a  conversation  like  the  one  testified  to  by  another  wit- 
ness. .  .  . 

'Two  questions,  however,  are  put  by  the  contestants  to  Dr.  Pratt, 
upon  the  assumption  of  the  same  facts,  and  overruled  by  the  court, 
which  I  think  did  not  properly  fall  within  the  objection  I  have  been  dis- 
cussing. 1st.  'Was  the  testator,  in  your  opinion,  at  the  time,  etc.,  ca- 
pable of  planning  and  executing  such  a  paper  as  is  here  offered  as  his 
will  ?'  and,  2d,  'Was  he  in  a  mental  and  physical  condition  to  transact 
any  business  requiring  an  exercise  of  the  judgment,  the  reasoning 
faculties,  and  a  consecutive  continuation  of  thought?'  The  first 
of  these  questions  was,  I  think,  admissible  under  the  decision 
of  this  court,  in  Beaubien  v.  Cicotte,  12  Mich.,  505,  and  I  con- 
cur entirely  with  my  brother  Campbell  in  that  case,  that  it  is  proper  to 
put  such  questions  to  the  witness  as  call  for  his  opinion  upon  the  ca- 
pacity of  the  party  to  understand  the  very  act,  or  kind  of  act,  in  dispute. 
I  am  unable  to  see  the  soundness  of  the  principle  in  which  five  of  the 
judges  concurred  in  the  Parish  will  case,  that  the  question  in  every  case 
is,  'had  the  testator,  as  compos  mentis,  capacity  to  make  o  will,  not  had 
he  the  capacity  to  make  the  will  produced.'  Men  do  not  make  wills  in 
the  abstract,  but  some  particular  will ;  and  the  question  should,  I  think, 
always  relate  to  the  capacity  to  understand  and  make  the  will  in  contro- 
versy. Some  wills  are  short,  plain,  and  easy  to  be  understood ;  others 
are  long  and  exceedingly  complicated  in  their  provisions.  If  the  testa- 
tor sufficiently  understands  the  short  and  simple  will  which  he  has  made, 
it  should  not  be  set  aside  because  he  had  not  the  capacity  to  understand 
the  long  and  complicated  one  which  he  did  not  make. 

"But  both  the  questions  above  mentioned  put  to  Dr.  Pratt,  when  fairly 
construed,  call,  I  think,  only  for  the  witness's  opinion  as  to  the  degree 
of  intelligence  actually  possessed  by  the  testator,  without  any  opinion  of 
his  on  the  legal  question  of  testamentary  capacity;  and  this  either  party 
had  a  right  to  show,  whether  it  should  be  greater  or  less  than  the  law 
requires  to  constitute  testamentary  capacity  in  reference  to  the  will  in 
question.  The  rejection  of  these  questions  was,  therefore,  in  my  opinion, 
erroneous."^ 

I — Compare   the   authorities  cited   in  W.,  §  1958. 


No.  419.  SUNDRY    APPLICATIONS.  409 

YOST  V.  CONROY  (1883). 
^2  Ind.  464. 

Elliott,   J. :     "There  is    much  confusion    and  some    conflict  in   our 
cases  upon  the  subject  of  proving  benefits  and  damages  to  land  affected 
by  the  construction  of  ditches,  turnpikes  and  ways,  and  this  case 
*  requires  an  examination  of  that  subject.     In  cases  of  confusion 

and  conflict,  the  better  way  is  to  search  for  principle  and  adopt  that  view 
which  stands  most  firmly  on  sound  principle. 

"It  is  an  elementary  doctrine,  that  witnesses  who  are  acquainted  with 
the  value  of  property  may  express  an  opinion  as  to  the  value.  Thus  far 
all  is  plain  and  free  from  doubt.  Opinions  of  witnesses  as  to  the  amount 
of  benefits  or  damages  sustained  by  a  party  are  not  competent.  It  may 
well  be  held  that  these  cases  declare  the  general  rule  correctly,  since  to 
hold  otherwise  would  put  the  witnesses  in  the  place  of  the  jurors,  and 
commit  to  them  the  decision  of  the  amount  of  recovery.  A  contrary  doc- 
trine would  also  violate  the  rule  that  witnesses  can  not  express  an  opin- 
ion upon  the  precise  point  which  the  issues  present  for  the  decision  of 
the  jury. 

"There  is  not,  however,  the  slightest  conflict  between  the  two  proposi- 
tions stated.  It  is  one  thing  to  prove  the  value  of  property,  and  quite 
another  to  prove  what  damages  have  been  sustained  by  a  party,  or  how 
much  benefit  has  accrued  to  a  litigant.  .  .  .  Many  things  enter  into  the 
estimate  of  benefits  and  damages  besides  the  value  of  the  land  taken, 
and  the  value  of  the  residue  with  and  without  the  improvement,  so  that 
in  expressing  an  opinion  as  to  the  value  a  witness  does  not  give  an  opin- 
ion as  to  the  amount  of  the  benefit  or  damages ;  he  does  no  more  than 
furnish  evidence  upon  one  of  the  elements  of  the  estimate.  It  is  im- 
possible to  conceive  that  juries  or  courts  can  justly  estimate  benefits  and 
damages  without  the  aid  of  opinions  of  values  from  competent  witnesses, 
unless,  indeed,  it  be  assumed  that  courts  and  juries  have  knowledge  of 
the  values  of  all  kinds  of  property.  If  this  assumption  were  just,  then, 
no  doubt,  all  that  would  be  needed  would  be  an  accurate  description  of 
the  property;  but  every  one  knows  that  in  the  very  great  majority  of 
cases  neither  courts  nor  juries  possess  such  knowledge  as  would  enable 
them,  unaided  by  opinions,  to  afiix  just  values  to  property.  .  .  . 

"The  question  which  here  directly  faces  us  is  this:  Is  it  competent 
to  prove  the  value  of  land  before  a  ditch  is  constructed,  and  what 
its  value  will  be  after  the  construction  of  the  ditch?  It  can  not  be 
doubted  that  such  evidence  tends  to  assist  in  determining  the  question 
of  damages  and  benefits,  nor  is  there  reason  for  supposing  that  it  is 
not  material.  The  situation  of  the  land  and  the  location  and  capacity 
of  the  ditch  may  be  described  with  perfect  accuracy,  and  yet  a  jury 
be  utterly  unable  to  form  a  just  estimate  of  the  amount  of  benefits  or 
damages.  Of  what  assistance  to  a  jury  composed  of  clergymen,  mer- 
chants, and  bankers  would  be  a  description  of  the  minutest  accuracy, 
without  some  estimate  of  values  by  competent  witnesses?    Possibly,  it 


410  OPINION   RULE.  No.  419. 

would  enable  such  a  jury  to  form  a  crude  conjecture;  it  could  do  but 
little  more.  .  .  .  There  seems  to  be,  elsewhere  than  in  Indiana,  very 
little  diversity  of  judicial  opinion  upon  the  proposition  that  a  witness 
may  state  his  opinion  of  the  value  of  land  with  and  without  the  pro- 
posed highway  or  ditch.  The  only  question  is  whether  he  may  not  give 
his  opinion  in  broad,  general  terms  as  to  the  extent  of  the  injury  or 
benefit.  ...  It  is  a  general  rule  that  a  witness  can  not  be  allowed  to 
express  an  opinion  upon  the  exact  question  which  the  jury  are  required 
to  decide.  .  .  .  The  cases  holding  that  general  opinions  as  to  the  amount 
of  damages  suffered  by  a  plaintiff  are  not  competent,  are  based  upon 
this  general  principle.  We  can  see  no  reason  why  the  general  rule 
should  not  apply  to  a  case  where  the  question  is  whether  the  ditch 
or  highway  will  be  one  of  public  utility.  The  question  is  one  upon 
which  no  especial  learning  or  experience  is  required,  and  in  such  cases 
opinions  are  not,  as  a  general  rule,  allowed  to  go  to  the  jury."^ 


PENN  MUTUAL  LIFE  INSURANCE  CO.  v.  MECHANICS'  SAV- 
INGS BANK  &  TRUST  CO.   (1896). 
iQ  CCA.  286,  /2  Fed.  413,  428. 

This  action  was  on  a  policy  of  insurance  for  $10,000  issued  December 

2,  1892,  by  the  Penn  Mutual  Life  Insurance  Company  to  John  Schardt, 

on  his  own  life.      Schardt  died  April   17,   1892,  during  the  cur- 

rency  of  the  policy.    The  questions  and  answers  in  the  application 

which  are  material  to  the  controversy  here  were  as  follows : 

"6.  Have  you  your  life  insured  in  this  or  any  other  company?  (If  so, 
give  the  name  of  each  company,  and  the  kind  and  amount  of  each  pol- 
icy) A.  Yes;  $10,000  in  Northwestern,  20  pay  life;  $5000  in  Aetna; 
$1,000  in  New  York  Mutual  Life,  renewable  term."  After  these  answers 
this  statement  was  signed  by  the  applicant :  "I  hereby  warrant  and  agree, 
that  I  am  temperate  in  my  habits,  now  in  good  health,  and  ordinarily 
enjoy  good  health,  and  that  in  the  statements  and  answers  in  this  appli- 
cation no  circumstance  or  information  has  been  withheld  touching  my 
past  and  present  state  of  health  and  habits  of  life,  with  which  the  Penn 
Mutual  Life  Insurance  Company  ought  to  be  made  acquainted."  ...  It 
was  conceded  that  at  the  date  of  the  application  Schardt  had  a  policy  for 
$5,000  in  the  New  York  Life  Insurance  Company,  which  he  failed  to 
mention.  Schardt's  salary  as  teller  was  $1,500,  and  he  had  but  a  small 
amount  of  property.  When  he  died  in  April,  1893,  he  had  $80,000  of 
insurance  on  his  life,  nearly  all  of  which  had  been  written  within  six 
months.  It  was  conceded  that,  for  more  than  a  year  prior  to  his  death, 
Schardt  had  been  constantly  embezzling  the  funds  of  his  bank,  and  that 
his  indebtedness  to  the  bank  thus  criminally  incurred  amounted  at  the 
time  of  his  application  for  this  policy  to  little  less  than  $100,000,  and  at 
his  death  exceeded  that  sum.  He  did  not  disclose  the  fact  of  his  crime 
to  the  defendant  at  the  time  of  his  application,  or  at  any  other  time. 
Defendant  called  insurance  experts  to  testify  in  regard  to  the  materiality 

2 — Compare   the  authorities  cited   in   W.,    §  1943. 


No.  420.  SUNDRY    APPLICATIONS.  411 

of  the  facts  in  respect  to  which  it  was  claimed  that  Schardt  had  been 
guilty  of  misrepresentation  or  concealment.  The  Court  permitted  the 
experts  to  say,  whether,  in  their  opinions,  the  facts  misstated  or  con- 
cealed were  material,  but  refused  to  allow  them  to  say  whether,  by  the 
usage  of  all  insurance  companies,  such  facts  were  regarded  as  material 
to  the  risk. 

Taft,  J. :  "At  the  trial  the  defendant  introduced  witnesses  who  had 
been  long  engaged  in  the  insurance  business,  and  was  permitted  by  the 
court  to  ask  them  whether  the  facts  concerning  which  it  was  either 
admitted  or  claimed  that  Schardt  had  made  untrue  statements,  and  the 
fact  of  his  embezzlements  which  he  did  not  disclose,  were  material  to 
the  risk;  but  the  court  declined  to  permit  an  answer  to  the  question 
whether,  by  the  usage  and  practice  of  all  insurance  companies,  such  acts 
were  regarded  as  material.  This  latter  ruling  of  the  court  was  excepted 
to  by  the  defendant  company.  The  question  of  evidence  thus  presented 
has  been  before  the  courts  of  England  and  America  in  many  different 
phases,  and  the  decisions  present  a  bewildering  conflict  of  authority.  .  .  . 
It  is  in  accord  with  the  better  reason  to  exclude  opinions  of  insur- 
ance experts  upon  the  point  whether  an  undisclosed  fact  was  material 
to  an  insurance  risk.  If  it  requires  scientific  knowledge  or  peculiar 
skill  to  trace  the  possible  causal  or  evidential  connection  between  the 
fact  claimed  to  be  material  and  the  loss  or  death  insured  against,  then, 
of  course,  the  testimony  of  those  learned  in  the  necessary  science,  or 
trained  in  the  particular  craft,  should  be  furnished  to  the  jury,  to  enable 
them  properly  to  estimate  the  weight  which  a  reasonably  prudent  insurer 
would  naturally  give  to  the  fact,  in  his  calculation  of  chances.  But 
where  the  calculation  of  the  chances  involves  a  consideration  only  of 
facts  of  everyday  life,  of  the  motives  of  men  living  in  the  same  com- 
munity with  members  of  the  jury,  and  of  those  ordinary  physical  and 
natural  causes  of  which  every  man  is  presumed  to  have  an  understand- 
ing, it  is  difficult  to  see  why  an  insurance  examiner  should  be  permitted 
to  influence  the  jury  by  giving  his  sworn  opinion  on  the  very  issue  which 
they  are  assembled  to  try,  and  of  which  they  are  presumed  to  have  the 
same  opportunities  upon  which  to  found  a  reliable  judgment  as  he.  It  is 
true,  he  may  have  had  occasion,  in  his  business,  to  consider  and  weigh 
facts  of  this  character,  for  this  purpose,  much  more  frequently  than  the 
jury,  but  that  does  not  render  his  opinions  on  the  facts  competent  evi- 
dence. .  .  .  Certainly,  there  is  the  same  ground  for  excluding  the  indi- 
vidual opinions  of  insurance  men  [in  life  insurance]  upon  the  materiality 
of  particular  facts  as  in  marine  and  fire  insurance.  Of  course,  the  evi- 
dence of  physicians  as  to  the  tendency  of  diseases  and  bodily  conditions 
or  habits  to  shorten  life  is  competent,  but  insurance  men  are  not  experts 
upon  these  subjects.  Facts  other  than  those  relating  to  the  health  and 
habits  of  the  applicant  usually  either  relate  to  the  motive  of  the  appli- 
cant to  destroy  himself,  or  increase  the  probability  of  death  by  ex- 
posure to  bodily  injury.  Of  the  materiality  of  this  class  of  facts  the 
jury  can  judge  quite  as  well  as  one  experienced  in  passing  on  insur- 
ance risks.     They  are  within  the  common  knowledge  of  mankind.  .  .  . 


412  OPINION   RULE.  No.  420. 

"The  better  authorities,  however,  seem  to  sustain  the  rule  that  the 
insurance  experts  may  testify  concerning  the  usage  of  insurance  com- 
panies generally  in  charging  higher  rates  of  premium  or  in  rejecting 
risks,  when  made  aware  of  the  fact  claimed  to  be  material.  The  dis- 
tinction between  this  and  the  rule  just  discussed  may  seem  at  first  a 
close  one,  but  on  consideration  it  appears  to  be  sound.  It  may  be 
asked  why,  if  one  insurance  man  of  long  experience  cannot  give  his 
individual  opinion  that  a  fact  is  or  is  not  material  to  a  risk,  should  it 
be  competent  for  him  to  state  the  opinions  of  a  great  many  insurance 
men  on  the  same  question?  A  fact  is  material  to  an  insurance  risk 
when  it  naturally  and  substantially  increases  the  probability  of  that 
event  upon  which  the  policy  is  to  become  payable.  Materiality  of  a 
fact,  in  insurance  law,  is  subjective.  It  concerns  rather  the  impression 
which  the  fact  claimed  to  be  material  would  reasonably  and  naturally 
convey  to  the  insurer's  mind  before  the  event,  and  at  the  same  time 
the  insurance  is  effected,  than  the  subsequent  actual  causal  connection 
between  the  fact,  or  the  probable  cause  it  evidences,  and  the  event. 
Thus,  it  is  by  no  means  conclusive  upon  the  question  of  the  materiality 
of  a  fact  that  it  was  actually  one  link  in  a  chain  of  causes  leading  to 
the  event.  And,  on  the  other  hand,  it  does  not  disprove  that  a  fact 
may  have  been  material  to  the  risk  because  it  had  no  actual  subsequent 
relation  to  the  manner  in  which  the  event  insured  against  did  occur. 
A  fair  test  of  the  materiality  of  a  fact  is  found,  therefore,  in  the  answer 
to  the  question  whether  reasonably  careful  and  intelligent  men  would 
have  regarded  the  fact,  communicated  at  the  time  of  effecting  the 
insurance,  as  substantially  increasing  the  chances  of  the  loss  insured 
against.  The  best  evidence  of  this  is  to  be  found  in  the  usage  and 
practice  of  insurance  companies  in  regard  to  raising  the  rates  or  in 
rejecting  the  risk  on  becoming  aware  of  the  fact.  .  .  .  But  care  must 
be  taken  that  the  witness  shall  not  substitute  his  own  opinion,  or  that 
of  his  own  company  only,  neither  of  which  is  relevant,  for  the  usage 
of  companies  generally.  The  modern  practice  of  life  insurance  com- 
panies seems  to  be,  not  to  vary  the  premium,  except  for  age,  and  either 
to  accept  risks  of  the  same  age,  or  reject  them  altogether.  If  so,  there 
would  seem  to  be  no  means  of  judging  the  materiality  of  any  other 
fact  than  that  of  age,  from  the  usage  or  practice  of  insurance  compan- 
ies, except  by  their  acceptance  or  rejection  of  the  risk;  and  the  ques- 
tion should  be  limited,  in  such  cases,  therefore,  to  whether  insurance 
companies  generally,  if  made  aware  of  the  undisclosed  fact,  would  re- 
ject the  risk.  The  question  which  the  court  refused  to  permit  was 
whether  the  misrepresented  or  concealed  fact  would  be  regarded  among 
insurance  companies  generally  as  material.  This  was  rightly  rejected. 
The  proper  form  in  which  the  question  might  have  been  put  to  a  duly- 
qualified  witness  was :  'Are  you  able  to  say,  from  your  knowledge  of 
the  practice  and  usage  among  life  insurance  companies  generally,  that 
information  of  this  fact  would  have  enhanced  the  premium  to  be 
charged,  or  would  have  led  to  a  rejection  of  the  risk.'  "^ 

3 — Compare  the  authorities  cited   in  W.,   §    1947. 


No.  423.  SUNDRY    APPLICATIONS.  413 

FENWICK  V.  BELL  (1845). 
421  I  C.  &  K.  313. 

[Quoted  ante,  No.  413.]'' 


EARL  OF  THANET'S  TRL\L  (1799). 
2/  How.  St.  Tr.  <)2j. 
Charge  that  the  defendant  obstructed  the  officers  and  aided  O'Con- 
nor, a  prisoner,  to  escape  during  his  trial;  Richard  Brinsley  Sheridan 
on  the   stand   for  the   defence.     Mr.  Law    (afterwards   L.   C.  J. 
*  Ellenborough)    cross-examining  for  the  prosecution:     "My  ques- 

tion is  whether,  from  what  you  saw  of  the  conduct  of  Lord  Thanet  and 
Mr.  Fergusson,  they  did  not  mean  to  favour  the  escape  of  O'Connor?"  "I 
will  say  that  I  saw  nothing  that  could  be  auxiliary  to  that  escape."  "I 
ask  you  again  whether  you  believe  [as  above]  ?"  "I  have  no  doubt  that 
they  zvishcd  he  might  escape;  but  from  anything  I  saw  them  do,  I  have 
no  right  to  conclude  that  they  did."  "I  will  have  an  answer.  I  ask 
you  again  [as  above]  ?"  "If  the  learned  gentleman  thinks  he  can  en- 
trap me,  he  will  find  himself  mistaken".  Mr.  Erskinc,  for  the  defence: 
"It  is  hardly  a  legal  question".  L.  C.  J.  Kenyon  :  "I  think  it  is  not  an 
illegal  question." 


FISKE  V.  GOWING  (1881). 
61  N.  H.  431. 
Debt.    The  plaintifif  recovered  judgment  against  Milan  Harris,  A.  R. 
Harris,    and    S.   G.    Griffin,    who   were   stockholders    in   the   M.    Harris 

Woollen  Co.,  a  corporation  of  which  the  defendant  was  treasurer; 

the  execution  issued  thereon  was  placed  in  the  hands  of  the  sher- 
iff for  collection,  who  exhibited  it  to  the  defendant  at  his  office  in  Bos- 
ton, and  at  the  time  gave  to  him  a  proper  and  sufficient  written  request 
for  a  certificate  of  the  number  of  shares,  &c.,  of* the  judgment  debtors 
in  the  corporation ;  and  the  defendant  did  not  then,  or  ever,  furnish 
such  certificate.  The  defence  was,  that  after  giving  the  written  request 
the  sheriff  waived  or  withdrew  it.  Both  the  sheriff  (produced  as  a  wit- 
ness by  the  plaintiff)  and  the  defendant  testified  fully  in  respect  to  all 
the  conversation,  facts,  and  circumstances  which  took  place  during  their 
interview.  Subject  to  the  plaintiff's  exception,  the  court  allowed  the 
following  question  to  be  put  to  the  defendant,  and  his  answer  to  be 
taken :  "Did  you,  or  not,  understand  from  what  Mr.  Holt  [the  sheriff] 
said,  and  from  his  conduct,  that  he  waived  or  withdrew  his  request  for 
a  certificate  ?"  Ans.  "I  fully  so  understood  it ;  that  was  the  reason  I 
took  no  steps  towards  giving  a  certificate."  .  .  . 

Smith,  J.:  "The  precise  question  raised  in  this  case  was  decided 
in  Eaton  v.  Rice,  8  N.  H.  378,  where  it  was  held  that  a  witness  may 
state  generally  what  he  understood  a  contract  between  two  persons  to 

4 — Compare  the   authorities  cited   in   W.,    §    1051. 


414  OPINION   RULE.  No.  423. 

have  been  from  their  conversation,  although  he  may  not  be  able  to  state 
the  language  used  in  making  the  agreement.  It  rarely  happens  that  two 
persons  are  able  to  give  precisely  the  same  account  of  a  conversation. 
Their  narration  will  differ  more  or  less  according  to  their  intelligence, 
their  interest  in  the  subject-matter,  their  opportunities  for  hearing,  their 
prejudices  for  or  against  the  parties,  the  lapse  of  time  since  the  conver- 
sation occurred,  and  a  variety  of  other  circumstances.  Emphasis  thrown 
upon  the  wrong  word  might  convey  a  meaning  different  from  that  orig- 
inally intended.  Often  the  manner  in  which  a  remark  is  made,  and 
the  conduct  and  appearance  of  the  party,  may  have  much  to  do  in  pro- 
ducing the  understanding  that  was  received,  much  of  which  it  is  diffi- 
cult and  sometimes  impossible  for  a  witness  to  describe.  It  was  a  vital 
question  whether  the  defendant  understood  or  had  a  right  to  understand, 
from  what  was  said  and  done,  that  the  request  for  a  certificate  was 
waived  or  withdrawn.  He  might  have  received  his  understanding  in 
part  from  the  conduct  of  the  officer,  and  in  part  from  what  was  said 
between  them  and  from  the  way  it  was  said.  To  confine  the  wit- 
ness to  a  mere  narration  of  the  language  used,  if  he  were  able  to  recall 
it,  might  give  the  jury  an  imperfect  and  erroneous  idea  of  the  actual 
understanding  of  the  parties."^ 


ALEXANDER  DAVISON'S  TRIAL  (1808). 
5/  How.  St.  Tr.  186. 
The  accused,  a  commissary-general  in  the  army,  was  charged  with 
fraud  in  the  public  accounts ;  Lord  Moira  sworn :  "Had  your  lordship 
[as  general-in-command]  an  opportunity  of  observing  his  [the 
*^*  accused's]  public  conduct?"  "His  conduct  was  clear  and  punc- 
tual, answering  every  expectation  I  had  formed,  strictly  delicate  in 
refusing  emoluments  which  he  might  well  have  claimed."  "From  your 
lordship's  general  knowledge  of  his  conduct,  is  he  a  person  whom  your 
lordship  would  think  capable  of  committing  a  fraud?"  "Certainly  not." 
After  an  interruption  on  another  point:  L.  C.  J.  Ellenborough  :  "The 
correct  inquiry  is  as  to  the  general  character  of  the  accused,  and 
whether  the  witness  thinks  him  likely  to  be  guilty  of  the  offence 
charged  in  the  indictment."  Sir  Andrew  Hmmnond  sworn ;  L.  C.  J. 
Ellenborough  :  "From  your  knowledge  of  Mr,  Davison's  character  and 
conduct,  do  you  think  him  capable  of  committing  a  fraud?"  "I  should 
have  thought  him  the  last  man  in  the  world  that  would  have  attempted 
anything  of  the  kind,  or  even  to  have  been  a  cause  of  it."  Mr.  James 
Davidson  sworn :  "From  all  that  you  have  observed  of  him  [Mr.  D.] 
and  all  that  you  have  known  and  heard  of  him,  what  is  your  opinion 
of  his  general  character?"  "You  say  'known  and  heard';  all  that  I  have 
known  of  him  is  that  he  has  been  an  honest  man,  an  honest  dealer 

5 — Compare    the    authorities   cited    in    W.  Compare     also     the     principle     of     Com- 

§§  1963,    1969.  pleteness,   ante,    Nos.    202-204. 


No.  425.  MORAL   CHARACTER.  415 

with  me  as  a  merchant."  "From  what  you  have  heard  in  the  world  at 
large,  what  is  your  opinion  of  him  ?"  "There  are  a  variety  of  reports 
concerning  Mr.  Davison ;  those  I  know  only  as  the  world  knows ;  but 
as  to  his  dealings  with  me,  I  always  found  him  an  honorable  and  hon- 
est man." 


R.  v.  ROWTON   (1865). 
Leigh  &  C.  520,  5S2>  529,  10  Cox  Cr.  25. 

Indecent  assault  upon  a  boy;  the  witness  for  the  prosecution  was 
asked,  "What  is  the  defendant's  general  character  for  decency  and 
morality  of  conduct  ?",  and  answered :  "I  know  nothing  of  the 
*  neighborhood's  opinion,  because  I  was  only  a  boy  at  school  when 

I  knew  him ;  but  my  own  opinion  and  the  opinion  of  my  brothers  who 
were  also  pupils  of  his  is  that  his  character  is  that  of  a  man  capable  of 
the  grossest  indecency  and  the  most  flagrant  immorality."  This  evi- 
dence was  objected  to. 

CocKBURN,  C.  J.  (for  eleven  of  the  thirteen  judges)  :  ".  .  .  When  we 
consider  what,  in  the  strict  interpretation  of  the  law,  is  the  limit  of 
such  evidence,  in  my  judgment  it  must  be  restricted  to  the  man's  gen- 
eral reputation,  and  must  not  extend  to  the  individual  opinion  of  the 
witness.  ...  I  am  strongly  of  opinion  that  that  answer  was  not  ad- 
missible. As,  when  a  witness  is  called  to  speak  to  the  character  of  the 
accused,  he  cannot  say,  T  know  nothing  of  his  general  character,  but 
I  have  had  an  opportunity  of  forming  an  opinion  as  to  his  disposition, 
and  I  consider  him  incapable  of  committing  this  offence ;'  so  here, 
when  the  witness  declared  that  he  knew  nothing  of  the  general  char- 
acter of  the  accused,  but  that  in  his  opinion  the  prisoner's  disposition 
was  such  as  to  make  it  likely  that  he  would  commit  the  offence  in 
question,    applying   the   same   principle,   the    answer   was   inadmissible." 

Erle,  C.  J.  (dissenting)  :  "Disposition  cannot  be  ascertained  di- 
rectly ;  it  is  only  to  be  ascertained  by  the  opinion  formed  concerning 
the  man ;  which  must  be  founded  either  on  personal  experience  or  on 
the  expression  of  opinion  by  others,  whose  opinion  again  ought  to  be 
founded  on  their  personal  experience.  ...  I  think  that  each  source  of 
evidence  is  admissible.  You  may  give  in  evidence  the  general  rumor 
prevalent  in  the  prisoner's  neighborhood,  and,  according  to  my  experi- 
ence, you  may  have  also  the  personal  judgment  of  those  who  are  ca- 
pable of  forming  a  more  real,  sul)stantial,  guiding  opinion  than  that 
which  is  to  be  gathered  from  general  rumor.  I  never  saw  a  witness 
examined  to  character  without  an  inquiry  being  made  into  his  per- 
sonal means  of  knowledge  of  that  character.  The  evidence  goes  to  the 
jury  depending  entirely  upon  the  personal  experience  of  the  witness 
who  has  offered  his  testimony.  Suppose  a  witness  to  character  were 
to  say :  'This  man  has  been  in  my  employ  for  twenty  years ;  I  have  had 
experience  of  his  conduct ;  but  I  never  heard  a  human  being  express 
an  opinion  of  him  in  my  life ;  for  my  own  part,  I  have  always  regarded 


416  '      OPINION   RULE.  No.  425. 

him  with  the  highest  esteem  and  respect,  and  have  had  abundant  ex- 
perience that  he  is  one  of  the  worthiest  men  in  the  world.'  The  prin- 
ciple the  Lord  Chief  Justice  has  laid  down  would  exclude  this  evidence, 
and  that  is  the  point  where  I  differ  from  him.  To  my  mind,  personal 
experience  gives  cogency  to  the  evidence ;  whereas  such  a  statement  as 
*I  have  heard  some  persons  speak  well  of  him,'  or  T  have  heard 
general  report  in  favor  of  the  prisoner,'  has  a  very  slight  effect  in  com- 
parison." 

WiLLES,  J.  (dissenting)  :  "I  apprehend  that  the  man's  disposition  is 
the  principal  matter  to  be  inquired  into,  and  that  his  reputation  is 
merely  accessory,  and  admissible  only  as  evidence  of  disposition.  .  .  . 
The  judgment  of  the  particular  witness  is  superior  in  quality  and  value 
to  mere  rumor.  Numerous  cases  may  be  put  in  which  a  man  may  have 
no  general  character — in  the  sense  of  any  reputation  or  rumor  about 
him — at  all,  and  yet  may  have  a  g-^od  disposition.  For  instance,  he 
may  be  of  a  shy,  retiring  disposition,  and  known  only  to  a  few ;  or 
again,  he  may  be  a  person  of  the  vilest  character  and  disposition,  and 
yet  only  his  intimates  may  be  able  to  testify  that  this  is  the  case.  One 
man  may  deserve  that  character  [reputation]  without  having  acquired 
it,  which  another  man  may  have  acquired  without  deserving  it.  In 
such  cases  the  value  of  the  judgment  of  a  man's  intimates  upon  his 
character  becomes  manifest.  In  ordinary  life,  when  we  want  to  know 
the  character  of  a  servant,  we  apply  to  his  master.  A  servant  may  be 
known  to  none  but  members  of  his  master's  family;  so  the  character 
of  a  child  is  known  only  to  its  parents  and  teachers,  and  the  character 
of  a  man  of  business  to  those  with  whom  he  deals.  .  .  .  According 
to  the  experience  of  mankind,  one  would  ordinarily  rely  rather  on  the 
information  and  judgment  of  a  man's  intimates  than  on  general  report; 
and  why  not  in  a  court  of  law  ?  .  .  .  The  evidence  in  this  particular 
case  was  of  a  very  peculiar  character,  because  the  prisoner  was  charged 
with  an  offence  which  would  not  only  be  committed  in  secret  if  it 
were  committed  at  all,  but  would  be  likely  to  be  Rept  secret  by  the  per- 
sons who  were  subjected  to  it.  Such  being  the  case,  in  order  to  ascer- 
tain the  prisoner's  character  for  morality  and  decency,  the  persons  of 
whom  you  would  inquire  would  be  those  who  had  been  within  reach 
of  his  influence — persons  who  would  not  be  likely  to  communicate  his 
conduct  to  the  neiehborhood  or  to  one  another." 


Chief  Justice  Swift,  (Conn.)  Evidence,  143  (1810)  :  "A  witness 
called  to  impeach  or  support  the  general  character  of  another  [witness] 
is  not  to  speak  of  his  private  opinion  or  of  particular  facts  in 
his  own  knowledge;  but  he  must  speak  of  the  common  reputa- 
tion among  his  neighbors  and  acquaintances.  The  only  proper  ques- 
tions to  be  put  to  him  are,  whether  he  knows  the  general  character  of 
the  witness  intended  to  be  impeached,  in  point  of  truth,  among  his 
neighbors  ?  and  what  that  character  is,  whether  good  or  bad  ?  The  wit- 
ness may  be   inquired   of   as   to  the  means  and  opportunity   he   has  of 


No.  427,  MORAL    CHARACTER ;    HANDWRITING.  417 

knowing  the  character  of  the  witness  impeached, — as,  how  long  he  has 
known  him,  how  near  he  Hves  to  him,  and  whether  his  character  has 
been  a  subject  of  general  conversation;  but  his  testimony  must  be 
founded  on  the  common  repute  and  understanding  of  his  acquaintance 
as  to  his  truth,  and  not  as  to  honesty  or  punctuality.  In  England,  [cit- 
ing 4  Esp.  162,]  the  first  question  is,  whether  the  witness  impeaching 
has  the  means  of  knowing  the  general  character  of  the  other  witness  ? 
and  from  such  knowledge  of  his  general  character,  whether  he  would 
believe  him  on  oath?"^ 


Algernon  Sidney's  Trial,  p  How.  St.  Tr.  8ji,  864  (1683)  ;  Mr 
Shcppard  sworn.  Att'y-Gcn.:  "Pray,  will  you  look  upon  these  writ- 
ings [shewing  the  libel].  Are  you  acquainted  with  Colonel  Sid- 
*•"*  ney's  hand?"  Sheppard:  "Yes,  my  lord."  Att'y-Gcn.:  "Is  that 
his  handwriting?"  Sheppard:  "Yes,  sir;  I  believe  so.  I  believe  all 
these  sheets  to  be  his  hand."  Att'y-Gcn.:  "How  come  you  to  be  ac- 
quainted with  his  hand?"  Sheppard:  "I  have  seen  him  write  the  in- 
dorsement upon  several  bills  of  exchange."  Col.  Sidney:  "My  lord,  I 
desire  you  would  please  to  consider  this,  that  similitude  of  hands  can 
be  no  evidence."  L.  C.  J.  Jeffries  :  "Reserve  yourself  until  anon,  and 
make  all  the  advantageous  remarks  you  can."  .  .  .  Sidney:  "Now,  my 
lord,  I  am  not  to  give  an  account  of  these  papers ;  I  do  not  think  they 
are  before  you,  for  there  is  nothing  but  the  similitude  of  hands  ofifered 
for  proof.  The  similitude  of  hands  is  nothing;  we  know  that  bonds 
will  be  counterfeited,  so  that  no  man  shall  know  his  own  hand." 

I — Story,  J.,  in  Gass  v.  Stinson,  2  tion  of  the  witness  is  'bad'  gives  but  im- 
Sumner  610  (18.37):  "When  the  examina-  perfect  information;  'bad'  is  a  relative 
tion  is  to  general  credit,  the  course  in  term,  and  the  inquiry  at  once  arises  in  the 
England  is  to  ask  the  question  of  the  wit-  mind,  'How  bad  is  it?'  Is  his  reputation 
nesses  whether  they  would  believe  the  so  bad  that  he  ought  not  to  be  believed 
party,  sought  to  be  discredited,  upon  his  under  oath?  The  mode  of  inquiry  [thus] 
oath.  With  us  the  more  usual  course  is  allowed  is  only  a  means  of  ascertaining 
to  discredit  the  party  by  an  inquiry  what  what  the  reputation  of  the  witness  for 
his  general  reputation  for  truth  is,  wheth-  truth  really  is.  The  object  of  the  testi- 
er it  is  good  or  whether  it  is  bad."  mony  is    not   to   introduce   as   evidence   the 

Caton,  C.  J.,  in  Eason  v.  Chafman,  21  opinion  of  the  impeaching  witness  as  to 
111.  35  (1858),  (after  pointing  out  that  the  truthfulness  of  the  witness  against 
persons  may  have  a  bad  name  for  truthful-  whom  he  testifies,  but  to  enable  the  jury 
ness,  and  yet  "from  their  daily  walk  and  to  ascertain  the  true  character  of  his  repu- 
conversation  in  other  respects,  none  would  tation  for  truth  as  the  impeaching  wit- 
doubt  their  truthfulness  when  solemnly  ness  understands  it,  and  thereby  enable 
called  to  testify  in  a  court  of  justice"):  them  to  determine  the  extent  to  which  it 
"Yet  it  would  be  impossible  to  detail  all  ought  to  discredit  the  witness.  The  ques- 
the  minutiae  of  the  circumstances  which  tion  would  be  the  same  in  effect  if  the  wit- 
would  inspire  that  confidence  so  as  to  im-  ness  were  asked  if  the  reputation  of  the 
part  their  full  and  just  impression  to  the  witness  in  question  were  such  as  to  go  to 
jury.  .  .  .  Hence  witnesses,  who  must  his  discredit  when  under  oath." 
be  always  impressed  with  these  indescrib-  Compare  the  authorities  cited  in  W., 
able   circumstances    if    they    exist,    have    al-  §§    1983,    1985. 

ways   been   allowed   to  express   the   opinion  Compare   also   the  rules   as   to   the   Kind 

whether  they  would   or   not   believe   the   im-  of    Character    (a>tf<?,     Nos.      115-117),     the 

peached   witness  under   oath."  mode    of   proof   of    Particular    Instances   of 

Per   Ctiriom,   in    Hillis   v.    IVylic,    26    Oh.  Misconduct    (ante,    Nos.    120-126),    and    the 

St.    576   (187s):     "To  say  that  the  reputa-  nature  of  Reputation    (ante,   Nos.  319-321). 


418  OPINION   RULE.  No.  428. 

Hales'  Trial,  //  How.  St.  Tr.  27$  (ijzg) ;  forgery  of  a  promissory 
note.  Counsel:  "Mr.  Lincoln,  those  receipts  which  you  produced,  did 
Mr.  Kinnersley  actually  write  them?"  Mr.  Lincoln:  "1  saw 
^*^  him  write  them  all."  Counsel:  "Shew  them  to  the  jury."  Reyn- 
olds, J.:  "Gentlemen  of  the  jury,  in  that  book  you  will  find  some  re- 
ceipts wrote  by  Mr.  Kinnersley,  which  Mr.  Lincoln  swears  are  his 
hand." 


Duncan,  J.,  in  Com.  v.  Smith,  6  S.  &  R.  5/1  (1819)  :  "Compari- 
son of  handwriting  is  when  other  witnesses  prove  a  paper  to  be  the 
handwriting  of  a  party,  and  the  witness  is  desired  to  take  the 
two  papers  in  his  hand,  compare  them,  and  say  whether  they  are 
or  are  not  the  same  writing.  There  the  witness  collects  all  his  knowl- 
edge from  comparison  only ;  he  knows  nothing  of  himself,  he  has  not 
seen  the  party  write,  nor  held  any  correspondence  with  him."^ 


DOE  dem.  MUDD  v.  SUCKERMORE  (1836). 

5  A.  &  E.  70s. 

Ejectment    for    messuages,  &c.,    in    Suffolk.     On    the    trial    before 

Vaughan,  J.,  at  the  Suffolk  Spring  assizes,  1835,  a  verdict  was  found 

for  the  defendant.     In  Easter  term,  18"?^,  Storks,  Serjt.,  obtained 
4.Q0 
*  "      a  rule  for  a  new  trial  on  the  ground  of  an  improper  rejection  of 

evidence.  On  this  day,  cause  was  shown  by  Kelly  and  Gunning;  and 
Storks,  Serjt.,  and  Byles,  were  heard  in  support  of  the  rule.  The  Court 
took  time  to  consider;  and  in  Trinity  term,  1837  (June  8th),  their 
Lordships,   differing  in  opinion,  delivered  judgment  seriatim.  ,  .  . 

Coleridge,  J. :  "This  was  a  motion  for  a  new  trial,  on  the  ground 
that  evidence  had  been  improperly  rejected  by  my  brother  Vaughan 
under  the  following  circumstances.  The  question  in  the  cause  was 
(the  due  execution  of  a  will ;  and  the  three  attesting  witnesses  were 
called.  It  was  supposed  that  one  of  them,  Stribling,  was  deceived  in 
swearing  to  his  own  attestation,  and  that,  although  he  had  attested  a 
will  for  the  testator,  the  document  produced  was  not  that  will,  but  a 
forgery,  and  that  the  attestation  was  in  truth  a  counterfeit.  Upon 
cross-examination,  two  signatures,  purporting  to  be  his,  and  to  have 
been  subscribed  to  depositions,  made  by  him  in  proceedings  relating  to 
the  same  will  in  another  court,  and  also  sixteen  or  eighteen  signa- 
tures, apparently  his,  pasted  on  a  sheet  of  pasteboard,  were  shown  to 
him :  and  he  said  he  believed  they  were  all  of  his  handwriting.  At  the 
time  he  gave  his  evidence,  another  witness  was  in  court,  and,  the  cause 
lasting  to  the  second  day,  was  called.  He  had  never  seen  Stribling 
write,  nor  had  any  other  means  of  acquiring  a  knowledge  of  the  char- 

2 — Compare  here  the  other  rules  as  to  the  The  foregoing  extracts  illustrate  the  con- 

qualifications  of  an  ordinary  witness  to  trast  hetween  the  ancient  and  the  modern 
handwriting,   ante,   Nos.   83,  84.  meanings    of    "comparison    of    hands"    (W.» 

§§  1991-1994). 


No.  430.  HANDWRITING.  419 

acter  of  his  handwriting,  but  from  an  examination  of  the  signatures 
so  produced:  this  he  had  made  on  the  first  day,  and,  from  this,  he 
stated  that  he  thought  he  had  acquired  a  knowledge  of  the  character 
of  his  handwriting;  and  he  was  asked  whether  he  believed  the  attesta- 
tion to  the  will  to  be  the  handwriting  of  Stribling.  This  was  objected 
to,  and,  on  argument,  determined  to  be  inadmissible ;  in  my  opinion, 
after  much  consideration,  the  evidence  was  properly  rejected. 

"The  rule  as  to  proof  of  handwriting,  where  the  witness  has  not 
seen  the  party  write  the  document  in  question,  may  be  stated  generally 
thus.  Either  the  witness  has  seen  the  party  write  on  some  former 
occasions,  or  he  has  corresponded  with  him,  and  transactions  have  taken 
place  between  them  upon  the  faith  that  letters  purporting  to  have  been 
written  or  signed  by  him  have  been  so  written  or  signed.  On  either 
supposition,  the  witness  is  supposed  to  have  received  into  his  mind 
an  impression,  not  so  much  of  the  manner  in  which  the  writer  has 
formed  the  letters  in  the  particular  instances,  as  of  the  general  char- 
acter of  his  handwriting;  and  he  is  called  on  to  speak  as  to  the  writ- 
ing in  question  by  a  reference  to  the  standard  so  formed  in  his  mind. 
It  is  obvious  that  the  weight  of  this  evidence  may  vary  in  every  con- 
ceivable degree ;  but  the  principle  appears  to  be  sound,  both  in  regard 
to  the  test  of  genuineness,  and  the  acquisition  of  the  means  of  apply- 
ing it.  The  test  of  genuineness  ought  to  be  the  resemblance,  not  to 
the  formation  of  the  letters  in  some  other  specimen  or  specimens, 
but  to  the  general  character  of  the  writing,  which  is  impressed  on  it 
as  the  involuntary  and  unconscious  result  of  constitution,  habit,  or 
other  permanent  cause,  and  is  therefore  itself  permanent.  And  we 
best  acquire  a  knowledge  of  this  character  by  seeing  the  individual 
write  at  times  when  his  manner  of  writing  is  hot  in  question,  or  by 
engaging  with  him  in  correspondence ;  either  supposition  giving  reason 
to  believe  that  he  writes  at  the  time  not  constrainedly,  but  in  his  natural 
manner.  .  .  . 

"Upon  these  grounds  directly,  I  conceive,  although  not  on  these 
alone,  our  law  has  not,  during  a  long  course  of  years,  permitted  hand- 
writing to  be  proved  by  the  immediate  comparison,  by  a  witness,  of  the 
paper  in  dispute  with  some  other  specimen  proved  to  have  been  written 
by  the  supposed  writer  of  the  first.  .  .  .  Assuming  that  no  dispute  exists 
as  to  the  genuineness  of  the  standard  or  the  fairness  with  which  it  has 
been  selected,  [still]  such  a  comparison  leads  to  no  inference  as  to  the 
general  character  of  the  handwriting.  .  .  . 

"If  the  points  which  I  have  just  supposed  to  be  conceded  [genuine- 
ness of  specimens  and  fairness  of  selection]  be  brought  into  question, 
other  and  most  serious  objections  arise  to  this  mode  of  proof.  If  the 
genuineness  be  disputed,  a  collateral  issue  is  raised,  and  that  upon 
every  paper  used  as  a  standard. — an  issue,  too,  in  which  the  proof 
may  be  exactly  of  the  same  nature  as  that  used  in  the  principal  cause, 
namely,  mere  comparison ;  with  the  additional  disadvantages  that  the 
former  standard  is  not  produced,  and  that  the  opposing  party  can  avail 


420  OPINION  RULE.  No.  430. 

himself  of  no  counter-proof.  ...  If  the  fairness  with  which  the  stand- 
ard has  been  selected  is  disputed,  this  again  must  lead  to  a  collateral 
inquiry,  in  which  the  parties  meet  on  unequal  terms  if  no  notice  has 
been  given  (and  none  is  required  by  our  law),  and  which  must  tend 
to  distract  the  jury,  if  notice  be  given,  and  the  discussion  on  the  cir- 
cumstances under  which  each  specimen  was  written  be  fully  gone 
into.  It  must  always  be  borne  in  mind,  in  considering  the  rule  of  the 
English  law  on  this  subject,  that  it  has  reference  to  a  trial  by  jury, 
and  that  we  have  no  provisions  for  limiting  the  standard  of  compari- 
son or  regulating  the  manner  of  conducting  the  inquiry ;  both  of  which, 
it  seems,  have  been  found  necessary  where  such  a  mode  of  proof  has 
been  admitted. 

"Now,  in  the  present  case,  it  must  be  conceded  that  the  witness  had 
not  acquired  his  knowledge  of  the  character  of  the  handwriting,  what- 
ever it  was,  in  either  of  the  ordinary  modes.  He  had  studied  certain 
signatures  selected  by  one  party,  and  had  acquired  an  impression  of 
some  general  character  pervading  the  whole :  he  had  heard  it  proved 
that  those  were  written  by  the  witness  Stribling;  and,  from  these  ma- 
terials he  was  to  speak.  It  is  asked,  how  does  this  differ  from  the  case 
of  knowledge  acquired  in  the  course  of  a  correspondence,  where  the 
standard  rests  equally  on  the  assumption  that  the  letters  are  written 
by  the  party  whose  they  purport  to  be?  With  respect  to  the  assump- 
tion, there  will  be  a  fitter  place  to  point  out  the  distinction;  but  I 
answer,  here,  that  the  two  cases  differ  in  that  which  is  essential,  in 
the  undesignedness  of  the  one,  the  fact  that  the  letters  are  written 
in  the  course  of  business,  without  reference  to  their  serving  as  aids 
for  a  collateral  purpose  in  some  future  unknown  cause;  and  in  the 
selection  which  is  made  in  the  other  by  the  party  to  the  cause,  who 
seeks  to  produce  them  for  a  particular  purpose.  I  have,  therefore,  no 
reasonable  assurance  that  the  witness  has  the  materials  for  ascertain- 
ing the  general  character  of  the  handwriting,  which  is  the  knowledge 
to  be  acquired.  .  .  .  Furthermore,  as  the  admissibility  of  this  species 
of  proof  cannot  depend  on  the  fact  of  the  signatures  having  been 
proved  by  the  admission  of  the  writer  himself,  I  would  ask,  what 
course  is  to  be  pursued  where  the  writing  which  is  to  form  the  standard 
is  itself  disputed?  Is  the  counter-evidence  to  be  received  at  once  as  to 
this  point;  and  the  opinion  of  the  jury  to  be  taken  on  the  preliminary 
and  collateral  issue,  before  the  evidence  is  heard  as  to  the  principal 
document?  Or  is  that  to  be  gone  into  after  the  prima  facie  proof  on 
the  collateral  issue,  and  to  be  received,  subject  to  being  entirely  dis- 
placed by  the  answer  on  the  other  side?  Or,  lastly,  is  the  judge  to 
decide  this  question  of  fact?  I  believe  it  impossible  to  answer  these 
questions  without  either  introducing  a  most  inconvenient  novelty  in 
our  procedure  at  Nisi  Prius,  or  involving  the  jury  in  a  complication 
of  issues  from  which  it  is  too  much  to  expect  that  they  should  escape 
safely." 

Williams,  J.:     "The  question   (important  as  it  is,  being  connected 


No.  430.  HANDWRITING.  421 

with  principles  and  practice  regulating  the  admissibility  of  evidence) 
seems  mainly  to  be  reduced  to  this  point,  whether  the  knowledge,  which 
the  witness  professed  to  have,  was  acquired  by  means  prohibited  by 
any  known  and  established  rule  of  law.  .  .  .  And  the  objection  is 
twofold;  first,  that  it  was  acquired  merely  by  the  comparison  of  writ- 
ing; and  next,  that,  at  all  events,  it  was  not  acquired  by  either  of  the 
legitimate  and  recognised  modes,  already  referred  to,  having  seen  the 
party  write,  or  corresponded  with  him. 

"As  to  the  first,  ...  it  seems  to  me  that  the  evidence,  so  far  as  this 
objection  is  concerned,  was  admissible,  because  it  was  not  the  com- 
parison of  handwriting,  in  the  proper  and  ordinary  sense  of  the  term. 
To  reject  it,  because  what  was  equivalent  to  a  comparison  of  hand- 
writing took  place,  would  go  far,  so  far  as  the  reason  of  the  thing 
is  concerned,  towards  disturbing  the  rule  altogether,  and  letting  in  a 
comparison  of  handwriting  as  a  medium  of  proof  in  all  cases  what- 
soever, or  excluding,  in  a  great  degree,  all  possibility  of  proof.  What 
is  to  be  said,  where  the  means  of  knowledge  are  derived  from  a  by- 
gone correspondence  of  considerable  standing?  What  is  it  but  com- 
paring a  distant,  and  (in  proportion  to  the  length  of  time)  faint  image 
in  the  mind  with  the  writing  in  question?  .  .  . 

"I  come  now  to  consider,  whether  the  witness  in  this  case  had  any 
legitimate  means  of  knowledge  to  authorize  the  question,  the  answer 
to  which  was  rejected.  It  has  been  said  that  the  specimens  selected 
may  have  been  garbled  and  fallacious,  'calculated  to  serve  the  purpose 
of  the  party  producing  them,  and,  therefore,  not  exhibiting  a  fair  speci- 
men of  the  general  character  of  the  handwriting.'  ...  I  cannot  per- 
ceive how  it  can  be  affirmed  that  this  was  a  partial  selection  by  those 
who  wished  to  use  the  papers.  The  selection  was  not  depending  upon 
their  power  merely.  The  whole  was  subject  to  the  answer  of  the 
witness.  The  papers  produced  might  all  have  been  admitted  to  be  of  his 
handwriting,  or  one-half,  or  any  other  portion  of  them,  or  all  might 
have  been  denied.  When  the  papers  were  so  admitted,  was  there  not 
then  some  proof  that  they  were  of  the  witness's  handwriting?  And, 
if  so,  how  can  the  case  differ  in  kind,  though  it  may  in  amount  or  de- 
gree of  proof,  from  the  perusal  or  reperusal  of  a  couple  of  letters, 
written,  the  one  ten,  the  other  five,  years  before?  Why  may  the  wit- 
ness give  an  opinion  of  any  person's  handwriting  from  a  study  of  such 
letters?  Because  the  writer  has,  in  some  manner,  authenticated  them 
to  be  his.  Why  might  the  witness  have  been  asked  the  proposed  ques- 
tions in  this  instance?  Because  the  witness  had  sworn  that  the  papers 
were  of  his  handwriting.  In  each  case,  it  is  from  the  perusal  of  papers 
(and  papers  only)  that  the  knowledge  is  acquired.  In  each  case  there 
is  some  proof  that  the  papers  to  be  perused,  in  order  to  form  a  judg- 
ment, are  those  of  the  parties  respectively,  respecting  whose  hand- 
writing in  the  particular  case  the  question  and  inquiry  arise.  .  .  .  Any- 
thing, I  presume,  from  which  the  identity  of  the  writer  is  established, 
may  suffice.     If  then,  from  such  proof,  whence  a  reasonable  inference 


422  OPINION  RULE.  No.  430. 

may  arise  that  the  letter  or  signature  is  by  such  or  such  person,  an 
opinion  of  his  handwriting  may  be  given,  the  question  recurs,  whether 
there  be  not  some  foundation  for  opinion,  where  the  party  has  upon 
his  oath  declared  that  the  papers  perused  by  the  witness  were  written 
by  himself.  That  no  person  has,  hitherto,  been  allowed  to  speak  of 
his  belief  of  handwriting,  except  he  has  acquired  his  knowledge  by 
one  or  other  of  the  prevalent  methods  (having  seen  the  party  write, 
or  received  writing  from  him),  may  doubtless  be  true;  but  it  is,  I  fear, 
but  an  imperfect  solution  of  the  present  difficulty.  May  not  the  answer 
be,  that  the  case  is  new?  In  truth,  has  it  ever  arisen  before?  If 
not,  we  are  called  upon,  as  in  the  various  and  ever  varying  combina- 
tions of  human  affairs  continually  does  and  must  occur,  to  apply,  as 
well  as  we  can,  the  principles  and  analogies  having  the  nearest  and 
most  direct   affinity  to  the  subject,  to  this   fresh  question.  .  .  ." 

Patteson,  J.  ".  .  .  All  evidence  of  handwriting,  except  where 
the  witness  sees  the  document  written,  is  in  its  nature  comparison. 
It  is  the  belief  which  a  witness  entertains  upon  comparing  the  writing 
in  question  with  an  exemplar  in  his  mind  derived  from  some  previous 
knowledge.  That  knowledge  may  have  been  acquired,  either  by  seeing 
the  party  write,  in  which  case  it  will  be  stronger  or  weaker  accord- 
ing to  the  number  of  times  and  periods,  and  other  circumstances  under 
which  the  witness  has  seen  the  party  write,  but  it  will  be  sufficient 
knowledge  to  admit  the  evidence  of  the  witness  (however  little  weight 
may  be  attached  to  it  in  such  cases),  even  if  he  has  seen  him  write 
but  once,  and  then  merely  signing  his  surname.  ...  Or  the  knowl- 
edge may  have  been  acquired  by  the  witness  having  seen  letters  or 
other  documents  professing  to  be  the  handwriting  of  the  party,  and 
having  afterwards  communicated  personally  with  the  party  upon  the 
contents  of  those  letters  or  documents,  or  having  otherwise  acted  upon 
them  by  written  answers,  producing  further  correspondence,  or  acquies- 
cence by  the  party  in  some  matter  to  which  they  relate,  or  by  the  wit- 
ness transacting  with  the  party  some  business  to  which  they  relate, 
or  by  any  other  mode  of  communication  between  the  party  and  the 
witness  which,  in  the  ordinary  course  of  the  transactions  of  life,  in- 
duces a  reasonable  presumption  that  the  letters  or  documents  were  the 
handwriting  of  the  party.  ...  A  third  mode  is  now  sought  to  be  intro- 
duced, namely,  by  satisfying  the  witness  by  some  information  or  evi- 
dence that  a  number  of  papers  are  in  the  handwriting  of  the  party, 
and  then  desiring  him  to  study  those  papers,  so  as  to  acquire  a  knowl- 
edge of  the  handwriting,  and  fix  an  exemplar  in  his  mind,  and  after- 
wards putting  into  his  hand  the  writing  in  question,  and  asking  his 
belief  respecting  it,  or  by  merely  putting  certain  papers  into  the  wit- 
ness's hands,  without  telling  him  who  wrote  them,  and  desiring  him 
to  study  them,  and  acquire  a  knowledge  of  the  handwriting,  and  after- 
wards showing  him  the  writing  in  question,  and  asking  his  belief 
whether  they  are  written  by  the  same  person,  and  calling  evidence  to 
prove  to  the  jury  that  the  former  are  the  handwriting  of  the  party. 


No.  431.  HANDWRITING.  423 

which  perhaps  may  be  considered  as  the  same  process  in  effect,  ex- 
pressed in  other  words.  The  very  foundation  of  this  mode  is  the 
establishment  of  the  fact  that  the  papers,  from  studying  which  the 
witness  is  to  acquire  his  knowledge,  are  the  handwriting  of  the  party. 
Now  that  fact  must  be  established,  either  by  the  acknowledgment 
of  the  party,  or  by  the  information  of  third  persons. 

"Assuming  the  witness  to  be  the  only  person  to  be  satisfied  of  the 
fact,  it  is  obvious  that  the  acknowledgment  of  the  party,  if  the  wit- 
ness be  called  to  affirm  the  handwriting,  would  be  a  most  unsafe 
ground  on  which  to  act,  and  was  so  considered  by  Lord  Ken  yon  in 
Stranger  v.  Searle,  i  Esp.  14;  and,  if  the  witness  be  called  to  disaffirm 
the  handwriting,  the  acknowledgment  of  the  party,  unless  he  be  a 
party  to  the  suit,  ought  not  to  bind  the  litigants;  and,  if  he  be  a 
party  to  the  suit,  it  may  fairly  be  urged  that  the  case  would  come 
within  the  second  mode  of  acquiring  knowledge  above  suggested, 
namely,  by  a  direct  communication  with  the  party.  The  other 
mode  of  satisfying  the  witness,  viz.  by  the  information  of  third  per- 
sons, is  equally  open  to  objection,  as  it  must  be  given  behind  the  back 
of  one  or  both  of  the  litigant  parties,  and  would  obviously  be  most 
unsafe  and  unfair. 

"The  jury,  therefore,  must  be  satisfied  of  the  fact.  Now  that  must 
be  by  evidence,  and  will  raise  a  number  of  collateral  issues,  foreign  to 
those  on  the  record,  and  for  which  one  of  the  litigants  must  of  neces- 
sity be  wholly  unprepared,  in  addition  to  the  danger  of  unfair  selec- 
tion by  the  other  litigant  who  produces  the  papers.  I  need  hardly 
advert  to  the  great  inconvenience  and  waste  of  time  which  will  be  in- 
curred by  such  a  wide  range  of  collateral  matter,  nor  to  the  observation 
that  the  proof  of  the  papers  in  those  collateral  issues  might  be  by  call- 
ing a  witness  who  had  acquired  his  knowledge  of  the  handwriting  in 
the  very  same  way  from  other  papers,  which  w'ould  equally  require 
to  be  proved ;  and  so  it  is  obvious  that  the  same  process,  as  is  now 
attempted,  might  be  repeated  ad  infinitum,  and  lead  to  no  conclusion. 
But  if  the  proof  of  the  papers  in  those  collateral  issues  be  by  calling  wit- 
nesses who  have  acquired  their  knowledge  of  the  handwriting  by  either  of 
the  two  modes  which  I  consider  to  be  the  only  legitimate  modes,  those 
witnesses  must,  from  the  nature  of  their  evidence,  be  much  more  com- 
petent to  form  an  opinion  as  to  the  handwriting  in  question  in  the  cause, 
than  the  witness  whose  evidence  is  proposed  to  be  introduced  by  such 
a  process."^ 

DOE  dem.  PERRY  v.  NEWTON    (1836). 
/  Nev.  &  P.  I. 
Ejectment  for  land  in  Cumberland.     At  the  trial  before  Coleridge, 
J.,   at   the   last    assizes   at    Carlisle,    it   appeared   that   this   action    was 
brought  by  the  heir  at  law  of  one  Brockbank  against  the  defend- 
ants, who  claimed  as  devisees  under  the  will  of  the  same  indi- 
vidual.    In  February  last  the  testator  died,  as  was  supposed  intestate. 

3 — Compare  the  authorities  cited  in  W.,  5  2016. 


424  OPINION   RULE.  No.  431. 

Some  weeks  afterwards,  in  removing  the  bed  in  which  he  had  died, 
a  document  was  found,  which  the  defendants  alleged  to  be  his  will. 
The  question  at  the  trial,  was,  as  to  the  genuineness  of  this  document. 
It  was  dated  in  1833,  and  was  witnessed  by  three  persons,  all  of 
whom  were  dead  at  the  time  of  the  discovery  of  the  will;  and  it  was 
not  known  by  whom  it  had  been  written.  Evidence  was  given,  on  the 
part  of  the  defendants,  of  belief  in  the  handwriting  of  the  testator  and 
attesting  witnesses.  On  cross-examination  the  same  persons  proved 
that  various  letters  produced  to  them  by  the  plaintiff's  counsel,  and  pur- 
porting to  be  letters  written  and  signed  by  the  testator  and  two  of  the 
persons  attesting  the  will,  were  respectively  in  their  handwriting.  On 
the  part  of  the  plaintiff  witnesses  were  afterwards  called,  who  negatived, 
according  to  their  belief,  the  alleged  handwriting  of  the  testator  and 
attesting  witnesses;  and  it  was  then  proposed  to  give  in  evidence 
the  before-mentioned  letters,  proved  to  have  been  undoubtedly  writ- 
ten by  the  testator  and  witnesses  respectively,  in  order  that  the  jury] 
might  compare  the  handwriting  contained  in  those  letters  with  the  sig- 
natures to  the  will,  and  thus  detect  an  alleged  dissimilarity  between 
such  letters  and  signatures.  This  evidence  was  rejected  by  the  learned 
judge.     A  verdict  was  found  for  the  defendants. 

Alexander  now  moved  for  a  rule  nisi  for  a  new  trial,  on  the  ground 
that  this  proof  had  been  improperly  rejected.  "The  general  rule  of 
evidence  on  this  subject  is  stated  to  be,  that  handwriting  cannot  be 
proved  by  a  com.parison  of  the  paper  in  dispute  with  any  other  papers, 
although  acknowledged  to  be  genuine.  The  generality  of  the  propo- 
sition was,  however,  limited  by  Griffith  v,  Williams.^  In  that  case  the 
Court  of  Exchequer  held,  that  the  rule  does  not  apply  where  the  writ- 
ing acknowledged  to  be  genuine  is  already  in  evidence  in  the  cause, 
and  that  in  such  case  the  jury  may  compare  the  two  documents.  Nor 
was  this  the  earliest  decision  upon  the  point ;  for  in  Allesbrook  v. 
Roach,-  not  noticed  in  the  last-cited  case,  Lord  Kenyon  allowed  the 
signature  of  the  defendant  to  several  bills  of  exchange  to  be  compared 
by  the  jury  with  his  alleged  signature  to  the  bill  on  which  that  action 
was  brought.  The  bills  there  allowed  to  be  made  the  subject  of  com- 
parison were  no  more  connected  with  the  matter  in  dispute  than  the 
letters  proposed  to  be  given  in  evidence  in  the  present  action.  .  .  . 
The  qtiestion  therefore  will  be,  the  propriety  of  such  a  limitation. 
Two  reasons  have  been  assigned  in  its  support:  first,  that  the  jury  may 
be  wholly  illiterate,  and  unable  therefore  to  institute  the  comparison; 
the  second,  that  the  party  interested  has  it  in  his  power  to  select,  and 
probably  will  select,  out  of  a  number  of  documents,  such  only  as  suit 
his  purpose,  and  will  keep  back  the  rest.  The  first  reason,  however 
applicable  at  former  times,  will  scarcely  have  any  weight  at  the  present 
day.  The  second  would  apply  with  equal  stringency  to  cases  of 
ancient  documents,  which  are  undoubtedly  proveable  by  a  comparison 
of  handwriting,    and   yet   in   such   cases   the   interested   party  possesses 

I— I  C.  &  T.  47.  2 — I   Esp.   3SI. 


No.  431.  HANDWRITING.  425 

the  same  power  of  producing  or  keeping  back  any  specimens  he  may 
deem  favourable  or  otherwise  to  his  view  of  the  case.  Such  a  course 
of  proceeding  is  open  to  inquiry  and  observation,  and  affords  a  test, 
rather  for  the  value,  than  for  the  admissibility,  of  this  description 
of  evidence.  It  is  difficult  to  see  on  what  solid  grounds  the  distinction 
can  rest  between  the  admissibility  of  documents  already  in  evidence 
in  the  cause,  and  those  offered  for  the  purpose  of  comparison.  Both 
are  avowedly  in  the  handwriting  of  the  party;  and  the  question  being 
the  genuineness  of  the  alleged  writing,  they  afford  an  equal  criterion." 

Lord  Denman,  C  J.:  "I  think  that  we  ought  not  to  raise  any 
doubt  on  this  subject.  Griffith  v.  Williams  was  supposed  to  go  a  long 
way  when  it  established  the  right,  on  the  part  of  a  jury,  to  take  other 
papers,  already  in  evidence,  and  compare  them  with  the  questionable 
one,  for  the  purpose  of  coming  to  a  conclusion,  from  the  comparison, 
whether  that  questionable  one  was  genuine.  The  real  ground,  on 
which  that  case  stands,  is,  that  comparison  in  such  a  case  is  unavoid- 
able. When  two  documents  are  placed  before  a  jury,  one  of  which 
is  in  question,  and  the  other  is  clearly  known  to  be  the  handwriting 
of  the  party,  no  human  power  can  prevent  the  jury  from  forming 
some  opinion  whether  those  two  were  written  by  the  same  person ; 
and  consequently  when  such  is  the  case,  and  the  mind  of  the  jury 
must  be  so  employed,  it  is  better  for  the  Court  to  enter  into  the  con- 
sideration, and  to  direct  any  observations  that  may  occur  as  to  the 
value  of  such  evidence.  I  own  I  do  not  find  it  easy  to  reconcile  what 
I  have  now  said  with  what  passed  before  Lord  Kenyon  in  the  case  of 
Allesbrook  v.  Roach.  What  was  done  in  that  case  is  not  consistent 
with  the  uniform  practice  of  Westminster  Hall.  ...  It  is,  in  my  opin- 
ion, infinitely  safer  and  better  to  abide  by  the  rule  which  has  existed 
up  to  the  present  time,  that  evidence  of  handwriting  by  comparison 
is  inadmissible,  except  in  cases  where  it  is  unavoidable.  Considering 
the  consequences  that  might  arise  in  criminal  cases,  that  a  party  might 
be  convicted  on  such  a  mere  conjecture  and  surmise  as  the  appearance 
handwriting  would  present,  we  cannot,  I  think,  be  too  cautious  in  ex- 
tending the  rule."  .  .  . 

Coleridge,  J. :  "I  am  of  the  same  opinion.  I  only  wish  to  say  a 
word  in  respect  to  that  instance  on  which  Mr.  Alexander  relied  with 
respect  to  ancient  handwriting.  ...  I  have  always  understood  that 
to  be  an  excepted  case ;  but  that  exception  has  been  founded  on  the 
same  principle  which  justifies  it  in  others.  The  exception  is  of  neces- 
sity; the  handwriting  cannot  be  proved  in  any  other  way.  Doubtless 
it  is  less  open  than  modern  writing  would  be  to  the  objection  that  the 
selection  may  be  an  unfair  one. 

"I  will  add  another  reason  why  I  think  the  evidence  was  properly 
rejected, — that  many  Irrelevant  issues  would  be  thereby  raised.  It  is 
all  very  well  if  the  jury  are  to  look  only  at  the  documents  that  are 
otherwise  in  evidence  in  the  cause.  Whether  those  documents  are 
or  are   not  in   the   handwriting  of  the   party,   must  be  proved  in  the. 


426  OPINION  RULE.  No.  431. 

course  of  the  case.  If  the  rule  is  extended  to  documents  that  have 
nothing  to  do  with  the  matter  in  dispute,  on  every  one  of  those  an 
issue  is  raised  quite  irrelevant  to  the  main  point;  w^ith  this  additional 
objection  to  be  made  to  it,  that  the  other  party  cannot  know  what  docu- 
ments are  going  to  be  produced,  and  does  not  come  prepared  to  answer 
inferences  arising  from  their  production.  This  seems  an  additional 
reason  why  the  rule  should  be  narrowed."  .  . 

Lord   Denman,  C.  J.:     "My  brother   Coleridge's  observation  is   a 
striking  one.     Each  letter  produced  might  raise  a  separate  issue."* 


UNIVERSITY    OF   ILLINOIS   v.    SPALDING     (1900). 
7/  N.  H.  163,  51,  Atl.  731. 

Action  against  Solomon  Spalding,  as  surety  on  a  bond  given  by 
Charles  W.  Spalding.  Verdict  for  the  defendant.  The  defense  was 
that  after  the  bond  was  signed,  and  before  it  was  delivered  to 
the  plaintiffs,  the  name  of  one  surety  was  erased  and  another 
written  over  it,  and  that  the  appearance  of  the  signatures  was  such 
ithat  ordinary  care  would  have  disclosed  the  erasure  and  substitution 
to  the  plaintiffs  before  acceptance  of  the  bond.  An  enlarged  photo- 
graphic copy  presented  faint  lines  of  the  writing  alleged  to  have  been 
erased.  The  plaintiffs  claimed  that  the  erasure  was  of  a  part  of  the 
defendant's  name  accidentally  written  by  him  upon  the  line  below  his 
full  signature,  while  the  defendant  denied  that  the  words  erased  were 
in  his  handwriting.  For  the  purpose  of  comparison  the  defendant 
introduced  in  evidence  his  signatures  written  upon  stock  certificates, 
and  sworn  to  be  genuine  by  him  and  by  the  treasurer  of  the  corpora- 
tion. The  plaintiffs  excepted  to  this  evidence  on  the  ground  that  the 
signatures  were  neither  admitted  to  be  genuine,  nor  found  in  papers 
otherwise  in  the  case,  and,  further,  that  they  appeared  to  have  been 
written  at  a  date  subsequent  to  the  execution  of  the  bond.  .  .  . 

Remick,  J. :  ''The  exception  next  considered  presents  the  question 
whether  signatures  of  the  defendant  on  papers  otherwise  irrelevant, 
and  not  admitted  to  be  genuine,  were  admissible  for  the  mere  purpose 
of  comparison  with  the  signature  in  dispute.  By  the  general  rule  of 
the  common  law,  comparison  by  juxtaposition  was  limited  to  the  writ- 
ing in  issue  and  writings  in  the  case  for  other  purposes.  The  intro- 
duction of  writings,  otherwise  irrelevant,  for  the  mere  purpose  of  com- 
parison, was  permitted  only  when  the  writing  in  issue  was  so  ancient 
as  not  to  admit  of  proof  based  on  knowledge  derived  from  seeing  the 
party  write,  or  its  equivalent.  .  .  .  While  the  law  remains  in  the  con- 
flicting and  inconclusive  shape  disclosed  by  the  foregoing  review  of 
the  authorities,  confusion  and  controversy  are  inevitable.  Consistency 
and  efficiency  alike  require  a  definite  rule,  authoritatively  declared.  In 
this  view,  we  have  re-examined  the  question,  both  from  the  point  of 
reason  and   authority. 

4 — Compare  the  authorities  cited  in   W.,  §  2008. 


No.  432,  HANDWRITING.  427 

"It  may  be  safely  stated  as  a  fundamental  proposition  that,  on  the 
question  whether  a  given  signature  is  in  the  handwriting  of  a  particu- 
lar person,  comparison  of  the  disputed  signature  with  other  writings 
of  that  person  known  to  be  genuine  is  a  rational  method  of  investi- 
gation, and  that  similarities  and  dissimilarities  disclosed  are  probative, 
and  as  satisfactory  in  the  instinctive  search  for  truth  as  opinion  formed 
by  the  unquestioned  method  of  comparing  the  signature  with 
an  exemplar  of  the  person's  handwriting,  existing  in  the  mind,  and 
derived  from  direct  acquaintance,  however  little,  with  the  party's  hand- 
writing. The  objections  upon  which  the  common-law  rule  of  exclusion 
is  founded  are  threefold:  (i)  Ignorance  of  jurors,  and  their  inability 
to  make  intelligent  comparison;  (2)  danger  of  unfairness  and  fraud 
in  the  selection  of  specimens,  with  no  sufficient  opportunity  for  the 
opposing  party  to  investigate  and  expose;  (3)  collateral  issues  to  the 
genuineness  of  specimens  presented. 

"(i)  The  first  objection,  however  justified  by  the  state  of  Eng- 
lish society  when  it  was  originally  announced,  has  no  weight  at  the 
present  time  in  a  jurisdiction  where  intelligence  and  education  are  gen- 
eral, and  needs  no  further  comment.  (2)  Since  the  right  to  produce 
specimens  under  a  rule  allowing  a  comparison  is  equally  open  to  both 
parties,  and  the  specimens  are  all  subject  to  examination  and  cross- 
examination,  the  opportunity  for  advantage  from  unfair  selections  is 
too  slight  to  furnish  reason  for  closing  the  door  against  this  impor- 
tant avenue  of  investigation.  (3)  The  third  objection — that  to  permit 
comparison  with  specimens  not  otherwise  in  evidence,  and  admitted 
for  the  mere  purpose  of  comparison,  would  introduce  collateral  issues, 
and  confuse  and  distract  the  jury — is,  when  applied  to  specimens 
neither  admitted  by  the  parties  nor  found  by  the  Court  to  be  genuine, 
firmly  grounded  in  reason  and  authority.  The  whole  doctrine  of  com- 
parison presupposes  the  existence  of  genuine  standards.  Comparison 
of  a  disputed  signature  in  issue  with  disputed  specimens  would  not 
be  comparison,  in  any  proper  sense.  When  the  identity  of  anything 
is  fully  and  certainly  established,  you  may  compare  other  things  with 
it  which  are  doubtful,  to  assert  in  whether  they  belong  to  the  same 
class  or  not ;  but,  when  both  are  doubtful  and  uncertain,  comparison 
is  not  only  useless  as  to  any  certain  result,  but  clearly  dangerous,  and 
more  likely  to  bewilder  than  to  instruct  a  jury.  If  disputed  signatures 
were  admissible  for  the  purpose  of  comparison,  a  collateral  inquiry 
would  be  raised  as  to  each  standard ;  and  the  proof  upon  this  inquiry 
would  be  comparison  again,  which  would  only  lead  to  an  endless  series 
of  issues,  each  more  unsatisfactory  than  the  first,  and  the  case  would 
thus  be  filled  with  issues  aside  from  the  real  question  before  the  jury. 
.  .  .  The  true  rule  is  that,  when  a  writing  in  issue  is  claimed  on  the 
one  hand  and  denied  on  the  other  to  be  the  writing  of  a  particular 
person,  any  other  writing  may  be  admitted  in  evidence  for  the  mere 
purpose  of  comparison  with  the  writing  in  dispute,  whether  the  latter 
is  susceptible  of  or  supported  by  direct  proof  or  not;  but,  before  any 


428  OPINION  RULE.  No.  432. 

such  writing  shall  be  admissible  for  such  purpose,  its  genuineness  must 
be  found  as  a  preliminary  fact  by  the  presiding  judge,  upon  clear  and 
undoubted  evidence.  This  involves,  indeed,  a  marked  departure  from 
the  common  law.  It  does  away  with  the  common-law  limitation  of 
comparison  to  standards  otherwise  in  the  case,  and  hence  with  its 
exceptions,  and  the  controversy  and  confusion  which  have  grown  out 
of  them.  ...  In  some  States,  as  already  shown,  legislation  has  been 
deemed  essential  to  bring  about  such  changes ;  but  in  others,  as  we 
have  also  shown,  the  same  result  has  been  accomplished  by  judicial 
action.  As  the  common-law  rule  was  based  primarily  upon  the  assumed 
incapacity  of  jurors  to  make  intelligent  comparison,  such  judicial  action 
would  seem  warranted  under  the  power  to  adapt  the  common  law  to 
new  conditions.  The  value  of  comparison  as  a  method  of  proof  being 
now  generally  conceded,  juries  being  no  longer  too  ignorant  to  derive 
benefit  from  that  source,  and  the  danger  of  spurious  specimens  and 
the  objections  to  collateral  issues  being  fully  met  by  requiring  the 
genuineness  of  the  standard  to  be  determined  as  a  preliminary  fact 
by  the  trial  judge,  there  remains,  it  would  seem,  no  satisfactory  reason 
for  the  old  limitations  and  exceptions.  And  it  is  fair  to  assume  that, 
had  no  statute  been  enacted,  the  common  law  of  England,  adjusting 
itself  to  changed  conditions,  would  now  accord  with  the  rule  we  have 
announced.  Such  a  tendency  was  indicated  by  the  discussion  and  de- 
cision in  [Doe  d.]  Mudd  v.  Suckermore,  which  was  so  soon  followed 
by  the  act  of  Parliament  referred  to.  In  any  event,  the  essential  prin- 
ciple of  the  common  law  is  preserved,  and  the  dangers  and  objections 
against  which  it  was  aimed  met,  by  requiring  the  genuineness  of  the 
standard  to  be  found  by  the  Court  as  a  preliminary  fact,  upon  clear 
and  positive  testimony." 


Statutes:  England,  1854,  Common  Law  Procedure  Act,  17  &  18 
Vict.  c.  125,  §27:  "Comparison  of  a  disputed  writing  with  any  writ- 
ing proved  to  the  satisfaction  of  the  judge  to  be  genuine  shall 
*  be  permitted  to  be  made  by  witnesses ;   and  such  writings,  and 

the  evidence  of  witnesses  respecting  the  same,  may  be  submitted  to 
the  Court  and  jury  as  evidence  of  the  genuineness,  or  otherwise,  of 
the  writing  in  dispute." 

California,  C.  C.  P.  1872,  §1944:  "Evidence  respecting  the  hand- 
writing may  also  be  given  by  a  comparison  made  by  the  witness  or  by 
the  jury,  with  writings  admitted  or  treated  as  genuine  by  the  party 
against  whom  the  evidence  is  offered,  or  proved  to  be  genuine  to  the 
satisfaction  of  the  judge." 

New  York,  Laws  1880,  c.  36,  §  i ;  Laws  1888,  c.  555 :  "Compari- 
son Oi"  a  disputed  writing,  with  any  writing  proved  to  the  satisfaction 
of  the  Court  to  be  genuine,  shall  be  permitted  to  be  made  by  witnesses 
in  all  trials  and  proceedings,  and  such  writings  and  the  evidence  of 
witnesses  respecting  the  same  may  be  submitted  to  the  Court  and  jury 
as  evidence  of  the  genuineness,  or  otherwise,  of  the  writing  in  dispute." 


No.  434.  HANDWRITING.  429 

§2  (amendment  of  i888)  same  for  the  first  eighteen  words;  then 
"handwriting  of  any  person  claimed  on  the  trial  to  have  made  or  exe- 
cuted the  disputed  instrument  or  writing,  shall  be  permitted  and  sub- 
mitted to  the  Court  and  jury  in  like  manner." 


History  of  the  Law  in  the  iSoos.^  "(^)  Classes  of  Witnesses. 
What  we  have  as  the  iSoos  came  in  (the  time  when  reasons  and 
principles  for  the  rules  of  evidence  began  much  to  be  thought 
about)  is  (i)  the  acceptance  of  witnesses  who  had  seen  the  per- 
son write ;  (2)  the  acceptance  of  witnesses  who  had  received  writings 
subsequently  treated  by  him  as  genuine  or  who  had  had  the  custody  of 
ancient  documents  of  the  same  person's;  (3)  the  permission,  for  such 
persons,  equally  of  merely  examining  the  disputed  writing  and  of 
bringing  into  court  the  specimens  they  knew  and  juxtaposing  them; 
(4)  the  exclusion  of  any  other  mode  of  testimony  vmder  the  condemna- 
tory phrase  'comparison  of  hands.'  The  other  kinds  of  witnesses  that 
were  thus  excluded  would  be  (a)  an  ordinary  zvitncss  who  knciv  noth- 
ing about  the  handwriting  but  merely  juxtaposed  specimens  and  com- 
pared; {b)  the  same  testimony  by  one  skilled  in  handwriting  gen- 
erally. 

"(a)  Now  the  former  was  of  course  barred  absolutely  by  the 
Opinion  rule,  well  expounded  in  this  connection  in  the  following  pas- 
sage: 

1770,  Yates^  J.,  in  Brookbard  v.  Woodley,  Peake  N.  P.  21,  note: 
'Where  it  is  merely  opinion  on  similitude  of  the  writing  collected  from 
barely  comparing  them,  the  jury  may  compare  them  as  well  as  any- 
body else,  and  any  two  people  may  think  differently.' 

"{b)  The  other  kind  of  testimony  thus  excluded  was  that  of 
experts  speaking  from  juxtaposition.  This  it  was  now  strenuously 
sought  to  introduce.  It  is  no  matter  of  surprise  that  the  judges  in 
stinctively  hesitated ;  for  the  idea  of  expertism  in  handwriting  was 
then  a  novel  one.  But  the  significant  circumstance  is  that  those  who 
tried  to  use  this  kind  of  testimony  were  obliged  to  strive  to  remove 
from  it  the  stigma  of  being  'comparison  of  hands.'  They  failed  for 
a  long  time  to  introduce  the  new  kind  of  testimony,  and  the  Legis- 
lature had  finally  to  step  in  with  its  aid.  But  the  result  of  the  dis- 
cussion was  that  the  stigmatized  'comparison  of  hands'  now  obtained 
definitely  a  narrow  meaning;  it  covered  the  testimony  of  all  witnesses 
whose  knowledge  was  acquired  solely  by  examination  of  specimens 
for  the  purpose  of  the  trial;  it  no  longer  applied  to  witnesses  who  had 
gained  a  knowledge  by  seeing  the  person  write  or  by  receiving  cor- 
respondence or  the  like.  .  .  . 

"(B)  Submission  of  Specimens  to  the  Jury.  There  is,  of  course, 
a  sole  remaining  way  of  attempting  to  prove  the  genuineness  of  hand- 
writing, vi::.,  without  asking  the  opinion  of  any  witness,  to  lay  before 
the   jury  some   specimens  of  the   writing   of   the   person    in   question. 

I — Quoted    from    W.,    §  1993. 


430  OPINION  RULE.  No.  434. 

In  the  early  practice  before  1800  there  was  no  objection  to  the  jury's 
examination  purely  as  such.  The  witness  who  had  seen  the  person 
write  (or  later,  had  received  papers,  or  possessed  old  documents  learned 
to  be  genuine)  might  bring  the  writing  in,  if  he  had  it,  and  the  jury 
would  incidentally  look  at  it.  Thus  the  stigma  of  'comparison  of  hands' 
was  not  applicable  to  the  fact  of  the  jury's  examination  as  such;  the 
struggle  was  against  the  use  of  a  certain  kind  of  witness,  not  against 
what  he  did  if  admitted.  There  were  towards  the  end  of  the  1700s 
only  two  kinds  of  witnesses — those  who  had  seen  the  person  write, 
and  those  who  had  held  correspondence  or  possessed  ancient  documents 
— and  it  seems  entirely  clear  that  not  only  could  these  witnesses  bring 
in  and  compare  the  specimens  they  had,  but  the  specimens  could  be 
laid  before  the  jury  for  their  inspection.  But  now  the  controversy 
(above  mentioned)  over  expert  testimony  by  juxtaposition  was  in  full 
array ;  the  new  and  narrow  sense  of  the  stigmatized  'comparison  of 
hands'  naturally  associated  itself  with  any  and  every  process  of  'com- 
parison' or  manual  juxtaposition;  and  doubts  about  the  propriety  of 
the  time-honored  inspection  by  the  jury  thus  arose.  It  is  possible  that 
the  old  practice  of  handing  to  the  jury  all  specimens  brought  in  by 
witnesses  who  had  seen  the  person  write  persisted  for  some  time  into 
the  1800S.  But  the  Court  of  Exchequer,  in  1830,  and  the  King's  Bench, 
in  1836,  after  canvassing  the  whole  subject  from  the  point  of  view  of 
policy,  put  a  limitation  upon  the  practice — confining  it  to  documents 
already  in  the  case — ,  which  remained  the  law,  until  the  Common  Law 
Procedure  Act  of  1854  speedily  reverted  to  the  early  tradition,  and 
substituted  its  more  satisfactory  rule. 

"If  the  foregoing  exposition  has  been  clear,  we  may  understand 
(i)  that  the  classes  of  witnesses  who  may  testify  to  handwriting  have 
increased  in  number  by  successive  enlargements;  (2)  that  the  whole 
meaning  of  'comparison  of  hands'  has  changed;  (3)  that  the  mere 
process  of  juxtaposition  coram  judicio,  whether  for  witness  or  for  jury, 
was  historically  orthodox  and  unquestionable;  and  (4)  that  the  oppo- 
site fates  at  common  law  of  juxtaposition  by  experts  and  juxtaposition 
by  jury — exclusion  for  the  former,  but  limited  sanction  for  the  latter 
— were  due  simply  to  the  fact  that  the  former  had  never  been  at- 
tempted till  the  180OS  and  was  merely  prevented  from  coming  into 
existence,  while  the  latter  had  always  existed  and  was  thus  able  to 
survive  the  attempts  on  its  life." 


HOAG  V.  WRIGHT     (1903). 
1/4  N.  Y .  36,  66  N.  E.  579. 
Per  Curiam  :     "The  plaintiff  is  the  son  and  sole  surviving  descend- 
ant of  the  defendants'  testatrix,   Hester   Hoag,  who  died  on  the  15th 
of    February,    1895,    in   the    eighty-first   year    of   her    age.      The 
^  "      action  is  upon  two  promissory  notes — one  for  $2,000,  dated  Oc- 
tober   16,    1890,   payable   to   the   order   of  the    plaintiff;   and  the   other 
for  $4,000,  dated  November  13,   1894,  payable  to  the  plaintiff — without 


No.  435.  HANDWRITING.  431 

words  of  negotiability.  The  complaint  is  in  the  usual  form,  and  by 
their  answer  the  defendants  denied  the  making  and  delivery  of  both 
notes,  and  alleged  that,  if  made  or  delivered,  they  were  without  con- 
sideration. .  .  . 

"Experts  were  called  by  both  parties  to  give  their  opinions  as  to 
the  genuineness  of  the  signatures  to  the  notes  after  comparing  them 
with  the  indorsement  of  the  decedent  upon  certain  checks  read  in  evi- 
dence as  standards  of  comparison.  Upon  the  cross-examination  of 
an  expert  named  Reed,  called  by  the  plaintiff,  it  appeared  that  during 
his  testimony  upon  a  previous  trial  of  this  action  he  had  been  shown 
two  papers  so  folded  as  to  disclose  only  what  purported  to  be  the 
signature  of  the  decedent  upon  each.  He  testified,  in  substance,  that 
upon  the  other  trial,  after  comparing  these  signatures  with  the  stand- 
ards in  evidence,  he  had  pronounced  them  genuine,  and  had  sworn 
that  all  were  written  by  the  same  hand.  Each  of  the  papers,  when 
unfolded,  was  a  total  blank,  and  the  signatures  were  obviously  spuri- 
ous. The  witness  was  thus  compelled  to  admit  that  he  had  been  mis- 
taken in  his  opinion  as  an  expert,  upon  the  previous  trial,  in  relation 
to  the  signature  of  the  decedent,  and  had  testified  that  the  spurious 
signatures  were  genuine.  After  this  witness  had  left  the  stand,  an- 
other expert  was  called  by  the  plaintiff,  who,  also  testifying  by  com- 
parison, stated  that  the  signature  to  the  notes  were  genuine.  Upon 
cross-examination  an  effort  was  made  by  the  defendants'  counsel  to 
show  that  he  had  made  the  same  mistake  upon  the  previous  trial  as 
Mr.  Reed.  For  this  purpose  he  was  shown  the  two  papers,  folded  so 
as  to  expose  only  the  spurious  signatures,  and  was  asked  if  he  remem- 
bered that  these  signatures  had  been  shown  him  on  the  former  trial. 
The  counsel  for  the  plaintiff  objected  to  'showing  the  witness  any 
papers  which  are  not  in  evidence.'  The  Court  thereupon  said :  'The 
objection  is  sustained.  I  think  it  is  incompetent.  On  reflection,  I  will 
strike  it  out.'  .  .  . 

"The  evidence  stricken  out  in  this  case  was  not  only  competent  and 
material,  but  was  of  decided  value,  and  might  have  turned  the  scale 
toward  the  defendants  upon  an  issue  so  closely  contested.  It  tended 
to  cast  doubt  upon  the  credibility  of  the  witness  and  his  skill  as  an 
expert.  It  suggested  the  question  whether,  if  the  witness  was  at 
fault  as  to  the  spurious  signatures,  he  was  not  at  fault  as  to  the  signa- 
tures in  question.  It  made  a  direct  attack  upon  the  value  of  his  opin- 
ion. .  .  .  Owing  to  the  dangerous  nature  of  expert  evidence,  and  the 
necessity  of  testing  it  in  the  most  thorough  manner  in  order  to  pre- 
vent injustice,  we  are  disposed  to  go  farther,  and  to  hold  that,  where 
a  witness  makes  a  mistake  in  his  effort  to  distinguish  spurious  from 
genuine  signatures,  and  he  does  not  acknowledge  his  error,  it  may  be 
shown  by  other  testimony.  The  test  sought  to  be  applied  in  this  case 
was  one  of  the  most  practical  and  conclusive  that  can  be  employed  to 
determine  whether  the  witness  is  really  an  expert  or  not.  It  bears 
not   only   upon   his   competency   to    express    an   opinion,  but   upon  the 


432  OPINION  RULE.  No.  435, 

value  of  his  opinion  when  expressed.  .  .  .  The  good  sense  of  the  trial 
judge  will  confine  it  within  proper  bounds,  and  prevent  an  unnecessary- 
consumption  of  time.  It  is  better  to  take  a  little  time  to  see  whether 
the  opinion  of  the  witness  is  worth  anything,  rather  than  to  hazard 
life,  liberty,  or  property  upon  an  opinion  that  is  worth  nothing.  The 
evils  and  injustice  arising  from  the  use  and  abuse  of  opinion  evidence 
in  relation  to  handwriting  are  so  grave  that  we  feel  compelled  to 
depart  from  our  own  precedents  to  some  extent,  and  to  establish  fur- 
ther safeguards  for  the  protection  of  the  public.  As  to  the  hostility  of 
witnesses  to  a  party  may  be  shown  as  an  independent  fact,  although 
it  protracts  the  trial  by  introducing  a  new  issue,  so,  as  we  think,  the 
incompetency  of  a  professed  expert  may  be  shown  in  the  same  way 
and  for  the  same  reason ;  that  is,  because  it  demonstrates  that  testi- 
mony, otherwise  persuasive,  cannot  be  relied  upon."^ 


3.     HYPOTHETICAL  QUESTIONS. 

KEMPSEY  V.  McGINNISS    (1870). 
21  Mich.  I2S,  141. 

The  testimony  offered  in  this  case  has  been  set  forth  ante.  No.  418. 

Christiancy,  J.:  "No  controversy  arises  upon  the  questions  touch- 
ing mental  capacity  put  to  any  one  of  the  witnesses  testifying 
from  their  personal  observation  alone.  But  the  contestants  of- 
fered in  evidence  the  opinions  of  several  professional  witnesses  who 
had  not  seen  the  testator  during  his  illness ;  and  upon  the  proper  mode 
of  conducting  such  an  examination  some  of  the  main  questions  in  the 
case  arise.  We  consider  it  too  well  settled  to  require  the  citation  of 
authorities,  that,  upon  questions  of  this  kind,  the  opinions  of  men 
skilled  in  that  particular  science,  in  other  words,  physicians,  are  ad- 
missible in  evidence,  though  not  founded  upon  their  own  personal  ob- 
servation of  the  facts  of  the  particular  case. 

"But  in  the  case  of  such  professional  witnesses,  as  well  as  in 
that  of  unprofessional  witnesses — who  are  allowed  to  give  their  opin- 
ions only  from  personal  observation — the  facts  upon  which  the  opinion 
is  founded  must  be  stated,  and  the  jury  must  be  left  to  determme 
whether  the  facts  stated,  as  well  as  the  opinions  based  upon  them,  are 
true  or  false.  And  it  is  obvious  that  when  such  opinions  are  given 
without  personal  knowledge  or  observation,  such  opinions  must  be  based 
either  upon  facts  observed  and  stated  by  other  witnesses  who  knew 
them,  or  upon  a  state  of  facts  assumed  for  the  purpose  as  a  hypothetical 
case,  which  the  jury  may  find  from  the  evidence.  But  as  the  jury  are 
to  pass  upon  the  credibility  of  all  witnesses  and  the  weight  of  the  evi- 
dence, and  to  determine  all  matters  of  fact  involved  in  the  case,  no 
witness  can  have  the  right  to  usurp  the  power  of  the  jury,  or  to  deter- 

I — Compare   the   authorities   cited   in   W.,   §  2015. 


No.  436.  HYPOTHETICAL   QUESTIONS.  433 

mine  any  of  these  questions  for  them,  nor  even  to  give  an  opinion  upon 
the  weight  or  credibility  of  any  of  the  testimony.  No  question,  there- 
fore, can  be  put  to  the  witness  which  calls  upon  or  allows  him  to  decide 
upon  the  truth  or  falsehood  of  any  evidence  in  the  case.  If,  therefore, 
there  be  any  conflict  between  the  witnesses  as  to  the  facts  upon  which 
a  professional  opinion  is  sought,  it  is  manifest  the  professional  witness 
cannot,  though  he  has  heard  the  testimony,  be  asked  to  base  his  opinion 
upon  that  testimony,  upon  the  hypothesis  of  its  truth ;  because,  to  reach 
his  conclusion,  he  must  necessarily  pass  upon  the  credibility  of  the  wit- 
nesses and  the  weight  of  the  evidence.  In  the  case  of  any  such  con- 
flict, therefore,  the  only  proper  mode  of  interrogating  the  professional 
witness,  is  by  stating  and  enumerating  in  the  question  itself,  the  facts 
to  be  assumed.  And  when  his  opinion  is  asked  upon  a  case  (such  as 
the  physical  or  mental  effects  of  a  disease  upon  a  certain  person,  under 
certain  circumstances  and  exhibiting  certain  symptoms),  as  stated  by 
other  witnesses,  when  there  is  no  conflict,  he  is  to  assume,  without  un- 
dertaking to  decide,  the  truth  of  their  statements,  and  to  base  his 
opinion  only  upon  the  facts  thus  assumed,  leaving  the  jury  to  deter- 
mine whether  such  assumed  acts  are  true  or  false. 

"Now,  it  is  manifest  that  this  is  but  giving  an  opinion  upon  a 
hypothetical  case,  as  much  as  if  the  facts  testified  to  by  the 
other  witnesses  had  been  expressly  and  hypothetically  assumed 
and  enumerated  in  the  question  itself.  And  it  would  seem,  from  the 
nature  of  the  case,  to  be  impracticable  to  frame  any  proper  question 
for  eliciting  an  opinion,  which  is  not  in  the  nature  of  a  hypothetical 
case,  being  based  upon  an  assumed  state  of  facts  which  the  jury 
may,  or  may  not,  find  to  be  true.  And  as  a  collection  of  state  of  facts 
assumed,  whether  few  or  many,  constitute  in  the  aggregate  the  basis 
on  which  the  opinion  is  asked,  if  it  does  not  appear  that  the  opinion 
would  be  the  same  with  any  of  those  facts  omitted,  it  necessarily  fol- 
lows that  if  the  jury  should  negative  or  fail  to  find  any  one  of  the 
assumed  facts,  the  opinion  expressed  cannot  be  treated  as  evidence, 
but  must  be  rejected  by  the  jury. 

"From  these  considerations  it  necessarily  follows  that  the  jury 
should  know  just  what  facts  are  assumed  and  enter  into  the  collec- 
tion or  state  of  facts  upon  which  the  witnesses  opinions  are  based, 
otherwise  they  cannot  know  whether  they  ought  to  treat  the  opinions 
as  evidence  at  all,  since  they  can  form  no  opinion  whether  such 
assumed  facts,  or  the  opinions  based  upon  them,  are  true  or  false.  .  .  . 
If  one  or  more  witnesses  have  stated,  in  the  presence  and  hearing  of 
the  professional  witness,  the  facts  observed  (such  as  the  symptoms  of 
the  person  in  question,  and  has  various  physical  and  mental  manifesta- 
tions), and  the  witness  is  asked  his  opinion  upon  the  hypothesis  that 
all  the  facts  stated  by  the  witness  or  witnesses  named  are  true,  the 
jury,  having  heard  all  the  evidence  alluded  to,  know  that  facts  are 
assumed  by  the  witness  in  giving  his  opinion.  But  if  the  witness  be 
asked  his  opinion  of  a  case  assuming  the  testimony  of  certain  specified 


434 


OPINION    RULE. 


No.  436, 


witnesses  to  be  true,  and  it  appears  that  he  did  not  hear  the  whole  ot 
their  testimony,  and  it  does  not  definitely  appear  what  facts  stated  by 
them  he  has  heard,  and  what  he  did  not  hear,  the  jury  cannot  know 
upon  what  state  of  facts  he  forms  his  opinion,  nor  whether  the  facts 
he  has  assumed  are  true,  nor  whether  his  opinion  would  have  been 
the  same  if  he  had  heard  the  whole ;  .  .  .  and  his  opinion  cannot,  there- 
fore, safely  be  received  in  evidence.  This  disposes  of  two  questions 
put  to  Dr.  Mottram,  the  rejection  of  which  was  excepted  to  by  the 
contestant;  both  of  which  were  based  upon  the  assumed  truth  of  the 
testimony  of  Eckard  and  Dr.  Abbott.  It  appears  from  the  statement 
of  Dr.  Mottram  himself  that  he  did  not  hear  the  whole  of  Eckard's 
testimony,  and  it  does  not  appear  what  particular  facts  stated  by  him 
he  did,  and  what  he  did  not  hear."^ 


BELLEFONTAINE  &  INDIANA   R.   CO.   v.   BAILEY    (i860). 

II  Oh.  St.  333,    337. 

Brinkerhoff,   J.:    "Peter    Bailey   brought   this    action    against   the 

Bellefontaine  and  Indiana  Railroad  Company,  before  a  justice  of  the 

peace   of   Darke   county,   to   recover  damages   for   the  killing  of 

*   '       his  two  horses,  through  the  carelessness  and  negligence  of  the 

employees  of  the   railroad   company   in   running  their   locomotive   and 


2 — M'Naghten's  Case,  lo  CI.  &  F.  207 
(1843).  Question  for  the  Judges:  "Can 
a  medical  man  conversant  with  the  disease 
of  insanity,  who  never  saw  the  prisoner 
previously  to  the  trial,  but  who  was  pres- 
ent during  the  whole  trial  and  the  exami- 
nation of  the  witnesses,  be  asked  his  opin- 
ion as  to  the  state  of  the  prisoner's  mind 
at  the  time  of  the  commission  of  the  al- 
leged crime,  etc.?"  Maule,  J.:  "In  prin- 
ciple it  is  open  to  this  objection,  that 
as  the  opinion  of  the  witness  is  founded 
on  those  conclusions  of  fact  which  he 
forms  from  the  evidence,  and  as  it  does 
not  appear  what  these  conclusions  are,  it 
may  be  that  the  evidence  he  gives  is  on 
such  an  assumption  of  facts  as  makes  it 
irrelevant    to    the   inquiry." 

Dean,  J.,  in  Lake  v.  People,  i  Park.  Cr. 
C.  557  (1854):  "A  question  in  physical 
science  will  afford  an  illustration.  A  mo- 
tion which  is  the  result  of  a  combination 
of  different  forces  invariably  changes  its 
direction  if  but  one  of  the  moving  powers 
is  withdrawn.  Take  away  half  of  them,  it 
would  be  reversed  in  its  course.  Experts 
might  be  called  to  prove  any  given  mo- 
tion; they  might  also  be  asked  what  would 
be  the  effect  of  certain  combined  forces; 
but  in  either  case  it  is  manifest  that  to 
have  the  opinion  correct,  all  of  the  motive 
powers  must  be  given.  ...  To  allow 
[medical  testimony  to  be  given  on  merely 
such  part  of  the  evidence  as  they  heard] 
would    be    as    dangerous    a    principle    as    to 


permit  a  juror  to  sit  during  a  part  of  the 
trial  and  then  unite  with  the  rest  in  ren- 
dering a   verdict." 

Morris,  C,  in  Burns  v.  BarenAeld,  84 
Ind.  48  (1882);  a  medical  witness  was 
asked  what  he  thought  of  a  certain  kind 
of  treatment,  after  examining  a  case; 
"The  answer  of  the  witness  was  not  based 
upon  facts  stated  by  him.  What  he  knew 
about  the  case  might  and  doubtless  did  em- 
brace much  more  than  he  had  stated  to  the 
jury;  how  much  or  what  he  knew  about 
the  case  was  in  a  great  measure  unknown 
to  the  Court  and  the  jury.  It  is  the  clear 
right  and  duty  of  the  jury  to  judge  of  the 
truth  of  the  facts  upon  which  the  opinion 
of  the  expert  is  based.  If  his  opinion  is 
based  upon  what  he  may  suppose  he  knows 
about  the  case — upon  facts,  it  may  be,  al- 
though irrelevant  and  unknown  to  the  jury 
— it  would  be  impossible  for  them  to  pass 
upon  the  truth  of  the  facts  upon  which 
the  opinion  may  be  based,  or  to  apply  the 
opinion  of  the  expert  to  the  facts. 
The  expert's  memory  might  be  deficient  in 
recollecting  all  the  facts  testified  to;  he 
might  have  a  different  understanding  of  or 
place  a  different  construction  upon  the  lan- 
guage used  by  the  witness  or  witnesses 
upon  whose  testimony  he  based  his  opin- 
ion from  what  the  jury  would  have  or 
place  if  they  were  informed  upon  what 
facts  testified  to  the  opinion  was  based." 

Compare     the    authorities     cited    in     W.,. 
§§  676,  681. 


No.  437.  HYPOTHETICAL   QUESTIONS.  435 

cars.  .  .  .  The  company  answered  simply  denying  the  negligence 
charged.  .  .  .  On  the  trial  of  the  case  in  the  common  pleas,  it  ap- 
peared from  a  bill  of  exceptions  embodied  in  the  record,  that  the 
defendant,  to  maintain  the  issue  joined  on  its  part,  called  to  the  stand, 
as  a  witness,  Aloah  Skilton,  who  testified  that  he  was  acting  as  loco- 
motive engineer  on  the  train  which  killed  the  horses  for  which  the 
action  was  brought,  at  the  time  of  said  killing,  and  saw  said  horses  in 
the  act  of  coming  upon  the  railroad  track;  that  he  was  acquainted  with 
the  business  of  running  railroad  engines  and  trains,  and  had  been 
engaged  in  the  business  for  the  last  five  years.  The  defendants'  coun- 
sel then  asked  said  witness  his  opinion  as  to  the  possibility  of  avoiding 
the  injury  to  the  said  horses,  in  view  of  the  distance  between  the  train 
and  the  plaintiff's  horses  when  the  latter  came  upon  the  railroad  track? 
To  which  question  the  plaintiff  objected;  which  objection  the  Court 
sustained,  and  refused  to  allow  the  question  to  be  answered;  to  which 
decision  of  the  Court  the  defendant  excepted.  .  .  . 

"It  is  objected,  in  the  second  place,  that  the  question  put  to  the 
witness  does  not  suppose  or  assume  a  state  of  facts  on  which  his  opin- 
ion was  to  be  based.  Undoubtedly,  if  the  witness  had  been  a  stranger 
to  the  actual  facts,  it  would  then  have  been  necessary  to  assume  a  state 
of  facts  as  the  foundation  of  any  opinion  he  might  give ;  but  no  such 
assumption,  it  seems  to  us,  is  necessary  when  the  witness  is,  or  is 
properly  presumed  to  be,  himself  personally  acquainted  with  the  ma- 
terial facts  of  the  case.  The  witness  here  was  himself  the  engineer 
of  the  locomotive,  by  which  the  injury  was  done;  he  saw  the  horses 
when  they  came  upon  the  track ;  we  think  it  is  fairly  presumable  that 
he  knew  something  of  the  distance  between  the  engine  and  the  horses 
when  they  came  upon  the  track;  the  velocity  and  weight  of  the  train; 
the  character  of  the  grade;  the  means  of  checking  the  velocity  of  the 
train ;  and  the  time  and  distance  which  would  be  required  to  check 
the  progress  of,  or  stop  the  train.  If  an  expert  may  give  his  opinion 
on  facts  testified  to  by  others,  we  see  no  reason  why  he  may  not  do 
so  on  facts  presumably  within  his  own  personal  knowledge ;  and  if 
his  knowledge  of  any  material  fact  be  wanting  or  defective,  the  parties 
have  ample  opportunity  to  show  it  by  cross  examination,  and  by  testimony 
aliunde.  A  physician  or  surgeon  called  on  to  give  an  opinion  as  to  the 
state  of  health,  or  the  cause  of  the  death  of  any  person,  and  having 
no  personal  knowledge  of  the  person's  symptoms,  must  of  necessity  tes- 
tify hypothetically  from  assumed  or  supposed  symptoms ;  but  surely  the 
attending  physician  or  surgeon  of  the  patient,  having  himself  the  best 
opportunity  of  personally  knowing  his  symptoms  and  condition,  is  not, 
in  the  first  instance  presumed  to  be  under  any  such  necessity.  The 
question  before  us  is,  in  principle,  it  seems  to  us,  the  same;  and  we 
think  the  Common  Pleas  erred  in  refusing  to  allow  the  question  to  be 
answered."^ 

3 — Compare   the   authorities   cited   in    W.,  §  673. 


436  OPINION  RULE.  No.  438. 


FIRST  NATIONAL  BANK  v.  WIREBACH'S  EXECUTORS  (1884). 

106  Pa.  j8,  44. 

Assumpsit,  by  the  First  National  Bank  of  Easton,  Pa.,  against 
Uranus  Wirebach,  executor  of  Jacob  C.  Wirebach,  deceased,  upon  a 
promissory  note  indorsed  by  the  decedent.  Plea,  non-assumpsit. 
Wirebach  died  in  May,  1877,  and  upon  the  nonpayment  of 
the  note  at  maturity  suit  was  brought  by  the  bank  against  his  executor. 
The  defendant  set  up  that  both  before  and  at  the  time  of  the  execution 
of  the  note  Wirebach  was  of  unsound  mind,  the  result  of  several  strokes 
of  paralysis,  and  was  incapable  of  contracting. 

To  sustain  this  defence  the  defendant  offered  the  notes  of  testimony 
•of  Dr.  E.  C.  Mann,  a  medical  expert  examined  at  a  former  trial  of  the 
cause.  This  was  objected  to  by  the  plaintiff,  on  the  grounds :  that  the 
testimony  was  based  on  "a  hypothetical  state  of  facts  different  from 
that  now  proved;"  that  "the  hypothetical  question  contained  statements 
of  matters  upon  which  no  testimony  whatever  has  been  offered  by  the 
defendant  at  this  trial:"  Objections  overruled  and  testimony  admitted. 
Exception.     First  assignment  of  error. 

Clark,  J.:  "At  the  trial  of  this  cause,  the  testimony  of  Dr.  E.  C. 
Mann,  a  medical  expert  examined  at  a  former  trial,  on  behalf  of  the 
defendants,  was  admitted;  the  plaintiffs  objected  to  the  reading  of  the 
notes  upon  several  grounds, — that  the  testimony  is  based  upon  a  hypo- 
thetical state  of  facts,  different  from  that  now  proved;  that  the  hypo- 
thetical question,  in  answer  to  which  the  witness  then  testified,  is  based 
upon  facts,  of  which  no  evidence  whatever  is  now  given,  and,  that  the 
plaintiff  has  a  right  to  cross-examine  the  witness,  upon  the  basis  of  the 
testimony  now  adduced.  We  cannot  say,  from  an  examination  of  the 
testimony  taken  at  the  last  trial,  that  the  hypothesis  assumed  is  not 
fairly  consistent  with  the  facts  sought  to  be  established,  and  alleged  to 
be  proved,  by  the  defendants.  The  form  of  the  interrogatory  was  such 
as  disclosed  clearly  what  specific  facts  were  assumed,  and  upon  which, 
the  opinion  of  the  expert  was  given;  that  opinion,  therefore,  could 
have  no  weight  with  the  jurors  in  their  deliberations,  unless  they 
found  the  facts  assumed  in  the  hypothesis,  to  have  been  established  by 
the  proofs.  Each  side  had  the  right  to  an  opinion  from  the  witness, 
upon  any  hypothesis  reasonably  consistent  with  the  evidence ;  and 
whether  the  facts  were  fairly  and  fully  stated  in  this  instance,  for  the 
opinion  of  the  witness,  was  a  question  for  discussion  to  the  jury.  The 
opinion  of  an  expert  can  be  of  no  value,  when  the  facts  of  which  the 
opinion  is  predicated,  are  not  established ;  whether  they  are  so  estab- 
lished is  for  the  subsequent  consideration  of  the  jury."* 

4 — Compare   the   authorities   cited   in   W.,   §  682. 


No.  439.  BOOK  X,  437 


PART  III. 
RULES  OF  EXTRINSIC  POLICY. 

General  Nature  of  these  Rules.^  "The  rules  admissibility  of  evi- 
dence, as  already  pointed  out,-  fall  into  three  general  groups:  first, 
those  which  determine  the  probative  value,  or  Relevancy,  of 
circumstantial  and  testimonial  evidence, — that  is,  the  fundamental 
quality  without  which  no  evidential  data  are  to  be  allowed  to  be  con- 
sidered by  the  jury;  secondly,  those  Auxiliary  Rules  of  Probative  Pol- 
icy which  impose  artificially  some  additional  conditions  of  admissibility, 
but  are  directed  solely  to  improving  the  quality  of  proof  and  strength- 
ening the  probabilities  of  ascertaining  the  truth  as  the  result  of  the 
investigation;  and  thirdly,  the  present  group, — those  rules  which  rest 
on  no  purpose  of  improving  the  search  after  truth,  but  on  the  desire 
to  consider  the  requirements  of  extrinsic  policy. 

"These  rules  forbid  the  admission  of  various  sorts  of  evidence  be- 
cause some  consideration  extrinsic  to  the  investigation  of  truth  is 
regarded  as  more  important  and  overpowering.  The  rules  of  this  last 
class  thus  differ  from  those  of  the  second  class  in  that  their  effect  is 
to  obstruct,  not  to  facilitate,  the  search  for  truth,  and  that  this  effect 
is  consciously  accepted  as  less  harmful,  on  the  whole,  than  the  extrinsic 
disadvantages  which  would  ensue  to  other  interests  of  society  it  no 
such  limitations  existed.  It  ought  to  follow  that  no  limitation  upon 
the  present  ground  ought  to  be  recognized  unless  it  is  clearly  demanded 
by  some  important  extrinsic  policy,  and  that  every  presumption  should 
be  made  against  such  a  demand. 

"The  most  natural  grouping  of  these  rules  of  Extrinsic  Policy  is 
that  which  regards  them  according  as  they  are  absolute  or  conditional. 
The  former  class  of  prohibitions  are  applied  by  the  Court  like  other 
rules  of  evidence ;  the  latter  are  not  applied  unless  on  demand  of 
the  person  supposed  to  be  affected  in  his  interests  by  the  extrinsic 
policy  in  question  and  to  be  protected  by  the  rule  from  an  injury 
to  that  interest.  The  latter  class  of  rules — the  rules  of  Privilege — 
have  features  in  common,  which  sharply  distinguish  them  from  the 
former.  The  former  class  is  small  in  number;  indeed,  it  can  hardly  be 
said  that  there  are  any  definite  and  well-established  rules  of  exclusion 
of  that  type;  they  have  usually  been  discountenanced  in  judicial  opin- 
ion. The  rules  of  the  latter  class,  on  the  contrary,  are  numerous  and 
well  established,  and  affect  in  a  marked  degree  the  daily  course  of 
proof  in   litigation." 

I — Quoted  from  W.,  §  2175.  2 — Ante.   No.   6. 


438  RULES   OF  ABSOLUTE   EXCLUSION^  No.  440. 


TITLE   I. 
RULES  OF  ABSOLUTE  EXCLUSION. 

COMMONWEALTH  v.  DANA   (1841). 
2  Mete.  s^9- 

This  was  an  indictment,  containing  six  counts,  on  the  second  and 
fourth  sections  of  e.  132  of  the  revised  statutes.  The  first  count  alleged 
that  the  defendant,  on  the  4th  of  January,  1841,  at  Boston,  unlaw- 
*  "  fully  had  in  his  possession,  with  intent  to  offer  for  sale,  and  to  sell 
and  aid  and  assist  in  selling,  negotiating  and  disposing  of  five  hundred 
certain  lottery  tickets,  and  five  hundred  shares,  to  wit,  halves  and  quar- 
ter tickets  and  shares,  &c.  in  a  certain  lottery  called  School  Fund 
Lottery,  for  the  benefit  of  public  schools  in  the  State  of  Rhode  Island. 
The  officer  who  served  the  search  warrant  produced  at  the  trial  sun- 
dry articles  by  him  taken  under  the  writ,  at  the  service  of  the  same, 
and  in  the  office  of  the  defendant;  some  of  which  articles  were  the 
property  of  J.  Phalen  &  Co.  but  containing  lottery  tickets  in  the  School 
Fund  Lottery  of  the  State  of  Rhode  Island,  and  all  in  the  care  and 
keeping  of  the  defendant.  The  counsel  for  the  defendant  objected  to 
the  admission  of  these  articles  so  taken  by  the  officer  and  shown  to  the 
jury  in  court,  on  the  ground  that  he  had  exceeded  his  authority  under 
the  search  warrant,  and  moved  that  the  same  be  excluded.  But  the 
judge  refused  to  exclude  any  thing  from  the  jury,  which  was  done 
or  taken  by  the  officer  in  execution  of  the  warrant.  To  which  the 
defendant's  counsel  excepted. 

Wilde,  J.:  "In  support  of  the  issue  joined  in  the  case,  the  attorney 
for  the  Commonwealth  offered  in  evidence  the  copy  of  a  search  war- 
rant issued  from  the  police  court  to  the  admission  of  which  the  defend- 
ant's counsel  objected,  on  the  ground  that  the  same  had  been  issued 
improvidently,  and  was  void  in  law.  The  warrant  was  issued  on  the 
complaint  of  one  Jonathan  F.  Pulsifer,  under  oath,  in  which  he  al- 
leged that  he  had  good  reason  to  believe,  and  did  believe,  that  lottery 
tickets,  and  materials  for  a  lottery,  unlawfully  made,  for  the  purpose 
of  drawing  a  lottery,  were  concealed  in  the  office  of  the  defendant,  and 
sundry  other  places.  By  the  Rev.  Sts.  c.  142,  §  2,  any  magistrate  is 
authorized  to  issue  warrants  'to  search  for  and  seize  lottery  tickets,  or 
materials  for  a  lottery,  unlawfully  made,  provided  or  procured,  for  the 
purpose  of  drawing  a  lottery,'  when  he  shall  be  satisfied  that  there  is 
reasonable  cause,  upon  complaint  made  on  oath,  that  the  complainant 
believes  that  lottery  tickets  or  materials  for  a  lottery  are  concealed  in 
any  particular  house  or  place.    If  this  be  a  valid  law,  the  objection  of 


No.  440.  ILLEGALLY    PROCURED    EVIDENCE.  439 

the  defendant's  counsel  fails;  but  they  contend  that  it  is  void,  being 
contrary  to  civil  liberty,  natural  justice,  and  the  Bill  of  Rights.  .  .  . 
The  law,  authorizing  search  warrants  in  such  cases,  is  in  no  respect 
inconsistent  with  the  Declaration  of  Rights.  We  are  also  of  the  opinion, 
that  the  warrant  in  this  case  is  in  conformity  with  all  the  requisitions 
of  the  statute  and  the  Declaration  of  Rights.  .  .  . 

"There  is  another  conclusive  answer  to  all  these  objections.  Ad- 
mitting that  the  lottery  tickets  and  materials  were  illegally  seized,  still 
this  is  no  legal  objection  to  the  admission  of  them  in  evidence.  If  the 
search  warrant  were  illegal,  or  if  the  officer  serving  the  warrant  ex- 
ceeded his  authority,  the  party  on  whose  complaint  the  warrant  issued, 
or  the  officer,  would  be  responsible  for  the  wrong  done.  But  this  is  no 
good  reason  for  excluding  the  papers  seized,  as  evidence,  if  they  were 
pertinent  to  the  issue,  as  they  unquestionably  were.  When  papers  are 
offered  in  evidence  the  Court  can  take  no  notice  how  they  were  ob- 
tained,— whether  lawfully  or  unlawfully, — nor  would  they  form  a  col- 
lateral issue  to  determine  that  question."^ 

3 — ScholHeld,  J.,  in  Stevison  v.  Earnest,  cured  by  fraud  or  violence,  while  the  party 

8o    III.    513,    518    (1875):      "It    is    contem-  thus   procuring   the    attendance    of    the    wit 

plated,  and  such  ought  ever  to  be  the  fact,  ness   would   be   liable  to  severe   punishment, 

that   the   records   of   Courts   remain    perma-  surely  that  could  not  be  urged   against  the 

nently    in    the   places    assigned   by   the   law  competency    of    the    witness.      If    it    could 

for    their    custody.      It    does    not    logically  not,   why  shall  a  record,   although   illegally 

foMow,    however,    that    the     records,     being  taken  from  its  proper  place  of  custody  and 

obtained,  cannot  be  used  as   instruments  of  brought    before    the     Court,    but    otherwise 

evidence;  for  the  mere  fact  of  [illegally]  free  from  suspicion,  be  held  incompetent?" 
obtaining  them  does  not  change  that  which  Compare    the    authorities    cited    in    W., 

is    written    in    them.      .      .      .      Suppose   the  §§  2183,  2373. 
presence    of   a    witness    to    have    been    pro- 


440  BOOK  I,  PART  III,  No.  441. 


TITLE  11. 

RULES  OF  CONDITIONAL  EXCLUSION 
(PRIVILEGE). 


SUB-TITLE  I: 
THE  TESTIMONIAL  DUTY  IN  GENERAL. 


COUNTESS  OF  SHREWSBURY'S  TRIAL  (1612). 

2  Hozv.  St.  Tr.  /dp. 

The  occasion  of  examining  Lady  Shrewsbury  before  the  Privy 
Council,  was  her  conduct  in  respect  to  the  marriage  of  lady  Stuart. 
This  latter  lady  was  first-cousin  to  James  I. ;  for  she  was  the 
daughter  of  Charles  earl  of  Lenox,  the  younger  brother  of 
James's  father  lord  Darnley.  Her  mother  was  Elizabeth  daughter  of 
sir  William  Cavendish.  The  countess  of  Shrewsbury  was  aunt  to  lady 
Arabella,  being  sister  to  her  mother.  A  marriage  took  place  between 
lady  Arabella  and  sir  William  Seymour,  who  at  the  Restoration  recov- 
ered the  dukedom  of  Somerset  for  his  family.  Being  a  marriage  with 
one  so  nearly  related  in  blood  to  the  King,  and  without  his  consent,  it 
was  deemed  an  offence  against  the  royal  prerogative,  on  which  account 
lady  Arabella  and  her  husband  were  imprisoned;  the  former  in  a  pri- 
vate house  at  Lambeth,  the  latter  in  the  Tower.  But  both  escaped 
from  their  confinement  with  a  view  to  retire  abroad ;  and  the  covmtess 
of  Shrewsbury  was  taken  into  custody  as  privy  and  accessary  to  the 
escape  of  lady  Arabella.  On  being  examined  by  the  privy  council,  the 
countess  refused  to  discover  what  she  knew  of  the  affair  of  the  Mar- 
riage and  Escape,  or  to  subscribe  her  examination ;  and  for  this  refusal 
she  was  brought  before  a  select  council.  The  Charge  was  in  two  points: 
I.  That  the  said  countess  of  Shrewsbury,  by  commandment  of  the 
King,  being  called  to  the  council  table,  before  the  lords  of  the  council 
at  White-hall,  and  there  being  required  by  the  lords  to  declare  her 
knowledge  touching  the  said  points,  and  to  discover  what  she  knew 
concerning  them,  for  the  safety  of  the  King,  and  quiet  of  the  realm; 
she  answered,  that  she  would  not  make  any  particular  answer;  and 
being  again  asked  by  the  King's  command  by  the  council  at  Lambeth, 
and  being  charged  again  to  answer  to  the  point,  she  refused  for  two 
causes:  i.  For  that  she  had  made  a  rash  vow  that  she  would  not 
declare  any  thing  in  particular  touching  the  said  points ;  and  for  that 
(as  she  said)  it  was  better  to  obey  God  than  man;  2.  She  stood  upon 
her   privilege  of  nobility,   scil.   to   answer  only   when   she  was   called 


No,  442.  PRIVILEGE ;  testimonial  duty.  441 

judicially  before  her  peers;  for  that  such  privilege  was  allowed  (as 
she  said)  to  William  earl  of  Pembroke,  and  to  the  lord  Lumley. 

Sir  Francis  Bacon,  Attorney-General,  arguing:  "You  must  know 
that  all  subjects,  without  distinction  of  degrees,  owe  to  the  King  tribute 
and  service,  not  only  of  their  deed  and  hand,  but  of  their  knowledge 
and  discovery.  If  there  be  anything  that  imports  the  King's  service, 
they  ought  themselves  undemanded  to  impart  it;  much  more,  if  they  be 
called  and  examined,  whether  it  be  of  their  own  fact  or  pi  another's, 
they  ought  to  make  direct  answer." 

"The  lord  Chancellor  began,  and  the  archbishop,  and  all  the  other 
lords  began  with  the  first,  and  adjudged  it  a  great  and  high  contempt, 
and  the  lord  Chancellor  said,  that  that  was  against  the  law  of  Eng- 
land, with  which  all  the  lords  agreed.  It  was  resolved  by  the  justices 
and  master  of  the  rolls,  that  the  denying  to  be  examined  was  a  high 
and  great  contempt  in  law,  against  the  King,  his  crown  and  dignity; 
and  that  if  it  should  be  permitted,  it  would  be  an  occasion  of  many 
high  and  dangerous  designs  against  the  King  and  the  realm,  which 
cannot  be  discovered :  and  upon  hope  of  impunity  it  will  be  an  encour- 
agement to  offenders,  as  Fleming  justice  said,  to  enterprize  dangerous 
attempts.  And  the  Master  of  the  Rolls  said,  that  it  was  not  any  privi- 
lege of  nobility,  to  refuse  to  be  examined  in  this  case,  no  more  than  of 
any  subject."^ 


Statutes.  England,  1562-3,  St.  5  Eliz.  c.  9,  §12:  "If  any  person 
or  persons  upon  whom  any  process  out  of  any  of  the  courts  of  record 
within  this  realm  or  Wales  shall  be  served  to  testify  or  depose 
concerning  any  cause  or  matter  depending  in  any  of  the  same 
courts,  and  having  tendered  unto  him  or  them,  according  to  his  or  their 
countenance  or  calling,  such  reasonable  sums  of  money  for  his  or  their 
costs  or  charges  as  having  regard  to  the  distance  of  the  places  is  nec- 
essary to  be  allowed  in  that  behalf,  do  not  appear  according  to  the 
tenor  of  the  said  process,  having  not  a  lawful  and  reasonable  let  or 
impediment  to  the  contrary,  that  then  the  party  making  default"   shall 

I — Jeremy  Bentham,  Draft  for  a  Jtidi-  lor,  to  be  passing  by  in  the  same  coach 
cial  Establishment,  (Works,  Bowring's  ed.  while  a  chimney-sweeper  and  a  barrow- 
IV,  320;  1827):  "What  then?  Are  men  woman  were  in  dispute  about  a  halfpenny- 
cf  the  first  rank  and  consideration,  are  worth  of  apples,  and  the  chimney-sweeper 
men  high  in  office,  men  whose  time  is  not  or  the  barrow-woman  were  to  think  proper 
less  valuable  to  the  public  than  to  them-  to  call  upon  them  for  their  evidence,  could 
selves — are  such  men  to  be  forced  to  quit  they  refuse  it?  No,  most  certainly." 
their  business,  their  functions,  and  what  Tilghman,  C.  J.,  in  Baird  v.  Cochran,  4 
is  more  than  all,  their  pleasure,  at  the  beck  S.  &  R.  307,  400  (1818):  "From  the  na- 
of  every  idle  or  malicious  adversary,  to  ture  of  society,  it  would  seem  that  every 
dance  attendance  upon  every  petty  cause?  man  is  bound  to  declare  the  truth  when 
Yes,  as  far  as  it  is  necessary, — they  and  called  upon  in  a  court  of  justice, 
everybody.  What  if,  instead  of  parties.  The  general  welfare  will  be  best  pro- 
they  were  witnesses?  Upon  business  of  moted  by  considering  the  disclosure  of 
other  people's,  everybody  is  obliged  to  at-  truth  as  a  debt  which  every  man  owes  his 
tend,  and  nobody  complains  of  it.  Were  neighbor,  which  he  is  bound  to  pay  when 
the  Prince  of  Wales,  the  .\rchbishop  of  called  on,  and  which  in  his  turn  he  is  en- 
Canterbury,    and   the    Lord    High    Chancel-  titled    to   receive." 


442  PRIVILEGE.  No.  442. 

forfeit  £io  and  give  further  recompense  for  the  harm  suffered  by  the 
party  aggrieved. 

1695-6,  St.  7  &  8  W.  Ill,  c.  3,  X7:  Persons  indicted  for  treason 
and  misprision  "shall  have  the  like  processe  of  the  court  where  they 
shall  bee  tryed,  to  compell  their  w^itnesses  to  appeare  fer  them  att  any 
such  tryal  or  tryals  as  is  usually  granted  to  compell  w^itnesses  to  appear 
against  them." 

United  States,  Constitution  1787,  Amendment  VI :  "In  all  criminal 
prosecutions,  the  accused  shall  enjoy  the  right  ...  to  have  compulsory 
process  for  obtaining  witnesses  in  his  favor."^ 


AMEY  V.  LONG  (1808). 
p  East  473,  479. 
This  was  an  action  on  the  case,  in  which  the  declaration  stated 
that  the  plaintiff,  in  Michaelmas  term  47  Geo.  3.  in  the  Court  of  K.  B. 
impleaded  one  K.  Smith  in  a  plea  of  trespass  on  the  case  to  the 
****  plaintiff's  damage  of  500/;  and  such  proceedings  were  thereupon 
had,  that  afterwards,  on  the  2d  of  December,  1806,  at  the  sittings  of 
Nisi  Prius  at  Westminster,  &c.  before  Lord  Ellenborough  C.  J.  a  cer- 
tain issue  joined  in  the  said  plea  between  the  plaintiff  and  K.  S.  in  due 
manner  was  tried,  &c. :  and  that  before  the  trial  of  the  said  issue,  viz. 
on  the  28th  of  November,  1806,  the  plaintiff  prosecuted  out  of  the  said 
court  his  Majesty's  writ  of  subpoena,  directed  to  — Railton,  W.  F.  Hope, 
C.  Long  (the  defendant),  and  A.  Grace;  by  which  writ  the  king  com- 
manded them  that  they  should  appear  in  their  proper  persons  respect- 
ively before  the  said  Edward  Lord  E.  &c.  in  his  Majesty's  said  court 
at  Westminster  Hall,  in  the  county  of  Middlesex,  on  Tuesday,  then 
next,  viz.  on  tj^e  2d  of  December  1806,  &c. :  And  that  they  the  said 
C.  Long  and  A.  Grace,  or  one  of  them,  should  produce  and  shew  forth 
at  the  time  and  place  aforesaid,  a  certain  warrant  granted  to  them  or 
one  of  them  by  the  Sheriff  of  Surry,  upon  a  certain  writ  of  npn  omittas 
testatum  fieri  facias  issued  out  and  under  the  seal  of  the  said  Court, 
&c.  on  or  about  the  13th  of  May  then  last,  between  the  plaintiff  and  S, 
Glover,  defendant,  and  the  paper  writing  or  instructions  which  accom- 
panied the  same  warrant;  and  then  and  there  to  testify  and  shew  all 
and  singular  those  things  which  they  knew,  or  the  said  warrant,  papers, 
&c.  might  import,  of  and  concerning  the  said  action  between  the  plain- 
tiff and  K.  Smith,  &c. :  which  said  writ  the  plaintiff  afterwards,  and 
before  the  trial  of  the  said  issue,  viz.  on  the  ist  of  December  1806, 
at  Westminster,  &c.  caused  to  be  made  known  and  shewn  to  the  de- 
fendant, and  a  copy  thereof  to  be  left  with  him,  and  then  and  there 
paid  him  is.,  being  a  reasonable  sum  for  his  costs  and  charges  in  at- 
tending as  a  witness,  according  to  the  tenor  of  the  said  writ  of  sub- 

2 — For     the     history     of    the     testimonial        for    witnesses,    see   W.,   §§  2189,    2193. 
duty   and    of   the    statutes    granting   process 


No.  443.  TESTIMONIAL   DUTY    IN    GENERAL.  443 

poena.  And  although  the  defendant,  in  part  obedience  of  the  said  writ 
of  subpoena,  did  afterwards  on  the  2d  December  1806,  at  W.  &c.  appear 
as  a  witness  on  the  trial  of  the  said  issue ;  and  although  the  defendant 
could  and  might,  in  obedience  to  the  said  subpoena,  have  produced  and 
shown  forth  at  the  time  and  place  aforesaid  on  the  said  trial  of  the 
said  issue  the  said  warrant  so  mentioned  and  referred  to  in  the  said 
writ  of  subpoena,  as  aforesaid,  and  thereby  so  required  to  be  produced 
and  shewn  forth  as  aforesaid ;  and  although  the  production  and  shewing 
forth  of  the  said  warrant  was  material  evidence  for  the  plaintiff  on 
the  said  trial,  and  would  have  enabled  the  plaintiff  to  have  obtained 
a  verdict  on  the  said  issue  against  the  said  K.  S.  at  W.  &c.  whereof 
the  defendant  there  had  notice ;  yet  the  defendant  not  regarding  his 
duty  in  that  behalf,  but  wrongfully  and  unjustly  intending  to  injure 
the  plaintiff,  and  to  deprive  her  of  the  benefit  of  the  same  evidence 
on  the  trial  of  the  said  issue,  and  thereby  to  prevent  her  from  obtaining 
a  verdict  against  the  said  K.  S.  thereon,  and  put  her  to  expence,  &c. 
did  not  nor  would  at  the  time  and  place  aforesaid,  on  the  said  trial  of 
the  said  issue,  produce  or  shew  forth  the  said  warrant,  or  the  said  paper 
writing  or  instructions  so  mentioned  and  referred  to  in  the  said  writ 
of  subpoena  as  aforesaid ;  although  the  defendant  was  then  and  there 
solemnly  called  upon  by  the  said  Court  for  that  purpose,  and  had  no 
lawful  or  reasonable  excuse  or  impediment  to  the  contrary ;  but  then 
and  there  wholly  neglected  and  refused  so  to  do ;  and  by  reason  thereof 
the  plaintiff  was  nonsuited  in  the  said  action ;  and  such  proceedings 
were  thereupon  had  in  the  said  action,  that  afterwards,  in  Hil.,  47 
Geo.  3.  the  said  K.  S.  recovered  against  the  plaintiff  52I.  los.  for  his 
costs  and  charges  about  his  defence  in  that  behalf,  as  by  the  record,  &c. 
more  fully  appears.  By  reason  of  which  said  several  premises  the 
plaintiff  was  not  only  obliged  to  pay  and  did  pay  to  the  said  K.  S. 
the  said  sum  of  52I.  los.  but  was  hindered  and  delayed  in  the  recov- 
ery of  her  damages  in  the  plea  aforesaid,  and  was  obliged  to  lay  out 
200I.  more  in  and  about  the  prosecution  of  the  said  action,  &c.  There 
was  another  count  in  substance  the  same.  To  which  the  defendant 
pleaded  not  guilty;  and  the  plaintiff  obtained  a  verdict. 

A  motion  was  made  to  arrest  the  judgment  on  two  grounds :  ist,  that 
it  was  not  sufficiently  alleged  in  the  declaration  that  the  defendant  had  it 
in  his  power  to  produce  the  warrant  which  the  writ  of  subpoena  duces 
tecum  required  him  and  another  person  to  whom  it  was  directed,  or  one 
of  them,  to  produce  at  the  trial ;  2dly,  That  that  which  is  commonly 
called  a  writ  of  subpoena  duces  tecum  is  not  of  compulsory  obligation 
in  the  law.  Mr.  Gibbs,  Attorney-General,  and  Mr.  Garroxv,  arguing 
against  the  issuing  of  such  process :  "The  writ  of  subpoena  duces 
tecum  only  lay  to  public  officers  for  the  production  of  the  public  docu- 
ments in  their  custody,  in  which  all  persons  had  or  might  have  an  in- 
terest, and  could  not  properly  be  extended  to  private  persons".  Messrs. 
Park,  Marryat,  and  Pell  (arguing  for  the  process)  :  "This  writ  is  of 
essential  importance  to  the  due  administration  of  justice,  oftentimes  as 


444  PRIVILEGE.  No.  443. 

much  as  the  common  writ  of  subpoena  to  compel  the  attendance  of  wit- 
nesses; for  where  a  matter  depends  upon  written  evidence  in  the  pos- 
session of  another  than  the  party  in  the  cause  who  is  interested  in  its 
production,  it  would  be  nugatory  to  enforce  his  personal  attendance 
without  the  document  by  which  the  truth  of  the  fact  in  issue  can  alone 
be  proved.  .  .  .  As  the  obligation  of  a  witness  to  answer  by  parol  does 
not  depend  upon  his  own  judgment,  but  on  that  of  the  Court,  the  same 
rule  must  prevail  with  respect  to  his  production  of  documentary  evi- 
dence. The  witness  is  bound  at  all  events  to  bring  with  him  the 
papers  which  he  has  been  subpoenaed  to  produce;  and  when  it  is  in 
Court,  he  may  then  state  any  legal  or  reasonable  excuse  for  withhold- 
ing it,  of  which  the  Court  will  judge.  In  this  respect  there  can  be  no 
distinction  between  parol  and  written  evidence.  Proof  of  either  kind, 
if  within  the  knowledge  or  possession  of  the  witness,  ought  to  be  pro- 
duced if  legal;  and  of  its  legality  the  Court  and  not  the  witness  must 
judge." 

Lawrence,  J.,  said  "this  was  one  of  the  greatest  questions  he  had 
ever  heard  agitated  in  Westminster  Hall, — one  which  most  deeply  af- 
fected the  administration  of  justice  both  civil  and  criminal.  He  could 
not  reconcile  it  to  his  mind  to  suppose  that  the  innocence  of  a  person 
accused  might  depend  on  the  production  of  a  certain  document  in  the 
possession  of  another,  who  had  no  interest  in  withholding  it,  and  yet 
that  there  should  be  no  process  in  the  country  which  could  compel  him 
to  produce  it  in  evidence." 

Ellenborough,  L.  C.  J.:  "The  right  to  resort  to  means  competent 
to  compel  the  production  of  written,  as  well  as  oral,  testimony  seems 
essential  to  the  very  existence  and  constitution  of  a  court  of  common 
law,  which  receives  and  acts  upon  both  descriptions  of  evidence,  and 
could  not  possibly  proceed  with  due  effect  without  them.  And  it  is 
not  possible  to  conceive  that  such  courts  should  have  immemorially 
continued  to  act  upon  both,  without  great  and  notorious  impediments 
having  occurred,  if  they  had  been  furnished  with  no  better  means  of 
obtaining  written  evidence  than  what  the  immediate  custody  and  pos- 
session of  the  party  who  was  interested  in  the  production  of  it,  or  the 
voluntary  favor  of  those  in  whose  custody  the  required  instruments 
might  happen  to  be,  afforded.  .  .  .  There  are  circumstances  in  respect 
of  which  the  production  of  an  instrument  required  in  the  terms  of  a 
subpoena,  would  not  be  enforced  by  the  authority  of  the  Court, — which 
is  a  proposition  too  clear  to  be  doubted.  And  to  be  sure,  though  it 
will  always  be  prudent  and  proper  for  a  witness  served  with  such  a 
subpoena  to  be  prepared  to  produce  the  specified  papers  and  instruments 
at  the  trial,  if  it  be  at  all  likely  that  the  judge  will  deem  such  produc- 
tions fit  to  be  there  insisted  upon;  yet  it  is  in  every  instance  a  question 
for  the  consideration  of  the  judge  Nisi  Prius  whether,  upon  the  prin- 
ciples of  reason  and  equity,  such  production  should  be  required  by  him, 
and  of  the  Court  afterwards,  whether,  having  been  there  withheld,  the 
party  should  be  punished  by  attachment." 


N3.  444.  TESTIMONIAL   DUTY    IN    GENERAL.  445 

Joseph  Chitty..  Practice  of  the  Lazi',  III,  829  (1835)  :  "In  general 
it  is  advisable  to  issue  and  serve,  not  only  a  subptena  to  give  evidence, 
but  also  to  produce  all  documents  in  the  witness's  power,  by  a 
**^  subpccna  duces  tecum,  and,  wiien  praciicable,  the  date  and  par- 
ticulars of  each  deed  or  document  should  be  stated,  so  as  to  preclude 
the  possibility  of  excuse,  that  the  particular  document  had  escaped  rec- 
ollection; and  afterwards  the  writ  may  conclude,  'and  all  other  deeds, 
documents,  instrumicnts,  writings,  and  papers  whatsoever,  in  your  cus- 
tody or  power,  that  may  afford  any  evidence  or  information  touching 
the  matters  in  difference  in  the  said  cause,'  and  further,  it  may  be  use- 
ful to  require  the  zvitness  in  terms  'diligently  to  search  for  and  exam- 
ine and  enquire  after  all  such  deeds,  docuynenis,  instruments,  papers 
and  writings;'  so  that  the  same  may  be  produced  and  given  in  evidence 
to  the  jurors  at  the  time  and  place  of  trial.  This  would  prevent  a  not 
"unfrequent  excuse,  that  the  witness  was  not  av/are  that  it  was  his  duty 
to  search,  which  after  having  been  served  with  so  explicit  a  subpoena, 
he  could  not  urge.    .  .  . 

"The  best  course  on  all  occasions  would  be  to  issue  a  subpoena 
duces  tecum  in  the  fullest  form,  and  as  in  the  antecedent  note ;  and  the 
names  of  four  witnesses  are  still  allowed  to  be  included  in  one  writ.  .  .  . 
Whether  a  witness  be  favourable  or  not,  it  is  always  most  prudent  to 
subpoena  him,  or  endeavor  to  do  so,  as  soon  as  the  issue  has  been 
joined,  or  at  least,  on  the  part  of  a  defendant,  as  soon  as  notice  of  a 
trial  has  been  given ;  first,  because  such  service  will  prevent  the  witness 
from  getting  out  of  the  way,  and  avoiding  service;  secondly,  because 
it  will  protect  the  witness  from  arrest  on  civil  process,  and  preclude 
all  excuses,  excepting  dangerous  illness,  for  non  attendance ;  and, 
thirdly,  because  if  such  bona  fide  endeavour  to  serve  be  ineffectual,  the 
judge,  upon  an  affidavit  of  such  early  but  unsuccessful  endeavours  and 
of  the  materiality  of  the  witness,  would  probably  postpone  the  trial  on 
the  application  of  the  defendant,  which  he  would  refuse  if  the  en- 
deavours were  too  long  delayed.  At  all  events,  a  witness  would  have 
good  ground  to  complain,  if  he  were  not  served  a  reasonable  time  be- 
fore the  trial,  and  perhaps  even  if  his  disobedience  might  be  excused. 
In  a  Tozvn  cause  a  bona  fide  endeavour  to  serve  the  witness  ought  to 
be  made  at  least  four  days  before  the  trial;  and  a  notice  in  London 
served  at  two  o'clock  in  the  afternoon,  for  a  witness  to  attend  the  sit- 
tings at  Westminster  on  the  same  afternoon,  is  much  too  short.  In  a 
Country  cause,  the  witness,  if  out  of  the  assize  town,  must  at  all  events 
be  served  before  the  commission  day,  and  also  before  the  day  of  attend- 
ance named  in  the  writ;  and  if  the  service  be  afterwards,  although  be- 
fore the  actual  day  of  trial,  and  in  consequence  the  witness  do  not 
attend,  the  Court  will  not  grant  an  attachment.  At  the  same  time 
every  prudent  witness  should  exert  himself  and  endeavor  to  attend, 
however   short  the  notice. 

"The  safest  course  is  alwavs  to  serve  a  copy  of  the  subpoena,  and 


446 


PRIVILEGE. 


No.  444. 


at  the  same  time  to  produce  and  show  the  original  to  the  witness  in  the 
presence  of  tzvo  persons,  who  will  afterwards  join  in  an  affidavit  that 
the  original  was  produced;  for  if  the  witness,  in  answer  to  an  applica- 
tion for  an  attachment,  should  swear  that  the  original  subpoena  was 
not  shown  to  him,  the  rule  nisi  for  the  attachment  might  be  discharged 
with  costs,  and  this  although  it  be  admitted  that  the  witness  did  not 
demand  inspection  of  the  original." 


BRADDON'S  TRIAL  (1684). 
p  How.  St.  II2-J,  ii6y. 
Mr.  Thompson :  "Call  Mr.  Fielder,  and  Mrs.  Mewx,  and  Mr.  Lewes." 
Lewes  appeared.  Crier:  "Lay  your  hand  on  the  book."  Lewes:  "My 
lord,  I  desire  my  charges  may  be  paid,  before  I  swear."  L.C.  J. 
Jefffries  :  "Pr'ythee,  what  have  I  to  do  with  thy  charges  ?  I  won't 
make  bargains  between  thee.  If  you  have  any  evidence  to  give,  and 
will  give  it,  do;  if  not  let  it  alone."  Lewes:  "My  lord,  I  shall  not  give 
any  evidence  till  I  have  my  charges."  L.  C.  J.:  "Braddon,  If  you  will 
have  your  witnesses  swear,  you  must  pay  them  their  charges.  Mr. 
Braddon:  "My  lord,  I  am  ready  to  pay  it,  I  never  refused  it;  but  what 
shall  I  give  him?"  L.  C.  J.:  "Nay,  I  am  not  to  make  bargains  between 
you,  agree  as  you  can."  Mr.  Thompson:  "My  lord,  we  are  willing  to  do 
what  is  reasonable.  You,  Lewes,  what  do  you  demand?"  Lezvcs:  "He 
can't  give  me  less  than  6.y.  a  day?"  L.  C.  J.:  "Why,  where  dost  thou 
live?"  Lewes:  "At  Marlborough."  L.  C.  J.:  "Why,  canst  thou  earn  6.y.  a 
day  by  thy  own  labour  at  Marlborough?"  Lewes:  "My  lord,  I  am  at  4o.y. 
or  3/.  a  week  charge  with  my  family  and  servants."  L.  C.  J.:  "What  trade 
art  thou?"  Lewes:  "A  stapler."  L.  C.  J.:  "And  does  your  trade  stand 
still  while  you  are  in  town?"  Lezves:  "Yes,  to  be  sure  it  can't  go  well 
on."  L.  C.  J.:  "Well,  I  say  that  for  you,  you  value  your  labor  high 
enough,  I  know  not  what  your  evidence  may  be ;  but,  Mr.  Braddon, 
you  must  pay  your  witness,  if  you  will  have  him."  Mr.  Braddon :  "I 
will,  my  lord,  very  readily.  What  will  you  have?  I  have  paid  you 
something  already."  Lezves:  "Give  me  20s.  more  then.  You  can't 
give  me  less."     Then  Mr.  Braddon  paid  him  20s.,  and  he  was  sworn. ^ 


WEST  v.  STATE  (1853). 

I   Wis.  210,  230. 

The  plaintiff  in  error  was  indicted  at  the  April  term  of  the  circuit 

court  for  the  county  of  Fond  du  Lac,  for  the  seduction  of  Eliza  Pierce. 

Before  the  trial  commenced,  the  defendant,  by  his  counsel,  moved 

**"      the  court  for  an  attachment  against  one  Ashel  Brooks,  on  whom 

a  subpoena,  as  a  witness  in  behalf  of  the  defendant  had  been  regularly 


3 — Statutes:  United  States,  Rev.  St. 
1878,  §  870:  No  witness  subpoenaed  to 
depose  under  a  dediinus  potestatem  "shall 
be  deemed  guilty  of  contempt  for  disobey- 
ing .  .  .  unless  his  fee  for  going  to, 
returning   from,   and   one    day's   attendance 


at,  the  place  of  examination,  are  paid  or 
tendered  to  him  at  the  time  of  the  service 
of   the   subpoena." 

Compare     the     authorities    cited    in    W., 
§§  2201,    2202. 


No.  446.  TESTIMONIAL   DUTY    IN    GENERAL.  447 

served,  and  who  had  been  in  attendance  as  such  witness,  in  obedience 
to  said  subpoena,  during  that  term,  but  had  left  and  gone  home  the  day 
before  the  application  was  made.  No  fees  had  been  paid  or  tendered 
the  witness,  and  it  appeared  that  his  testimony  was  material  to  the 
defense.  The  motion  was  denied  by  the  Court,  on  the  ground  that  no 
fees  had  been  paid  or  tendered  to  the  witness  by  the  defendant.  To 
which  decision  of  the  Court,  the  defendant  excepted. 

Smith,  J.:  "It  is  alleged  for  error,  that  before  the  trial  commenced, 
the  defendant,  by  his  counsel,  moved  the  Court  for  an  attachment 
against  one  Ashel  Brooks,  who,  it  appeared,  had  been  duly  subpoenaed 
to  attend  as  a  witness  on  behalf  of  the  defendant,  and  who  had  been 
in  attendance,  but  had  left  and  gone  home  the  day  before  the  trial; 
which  said  motion  was  overruled  by  the  Court,  on  the  ground  that  no 
fees  had  been  paid  or  tendered  to  the  witness.  .  .  . 

"It  was,  anciently,  the  commonly  received  practice,  in  the  common 
law  courts,  that  no  counsel  should  be  allowed  the  defendant  upon  his 
trial  upon  the  general  issue,  in  any  capital  crime,  unless  some  point  of 
law  arose,  proper  to  be  debated.  Several  reasons  are  given  for  this 
rule;  perhaps  the  best,  if  not  the  most  facetious,  that  could  be  devised, 
is  that  given  by  Sir  Edward  Coke,  which  is,  'because  the  evidence  to 
convict  the  prisoner  should  be  so  manifest  as  it  could  not  be  contra- 
dicted.' So,  also,  the  doctrine  was  held,  that  as  counsel  was  not  al- 
lowed to  any  prisoner  accused  of  a  capital  crime,  so  neither  should  he 
be  allowed  to  exculpate  himself  by  the  testimony  of  any  witnesses  .  .  . 
At  length  the  enormous  injustice  of  the  rule  became  so  oppressive  to 
the  consciences  of  the  courts  that  the  practice  of  examining  witnesses 
for  the  prisoner,  without  oath,  gradually  grew  up.  But  the  iniquity  of 
this  practice  was  as  obvious  as  that  of  the  old  rule.  The  witnesses  for 
the  crown  testified  under  oath,  and  however  solemnly  or  truly,  or  rea- 
sonably they  might  testify,  the  evidence  produced  by  the  prisoner, 
wanted  the  same  sanction  of  an  oath,  and  lost  its  just  weight  in  the 
estimation  of  the  jury.  At  different  times  afterwards,  the  rule  was  so 
modified  by  acts  of  parliament,  as  to  admit  the  examination  of  witnesses 
on  oath,  in  behalf  of  the  defendant,  in  particular  cases,  until  at  length, 
it  was  declared  by  statute  (i  Ann.  St.  2  c.  9),  'that  in  all  cases  of 
treason  and  felony,  all  witnesses  for  the  prisoner  should  be  examined 
upon  oath,  in  like  manner  as  the  witnesses  against  him.'  .  .  .  And  in 
conformity  with  the  full  equity  of  the  rule,  the  Constitution  of  the 
United  States,  and  of  this  state,  declares  'that  in  all  criminal  prosecu- 
tions, the  accused  shall  enjoy  the  right  to  be  heard  by  himself  and 
counsel  for  assistance  in  his  defense,  and  to  have  compulsory  process 
to  compel  the  attendance  of  witnesses  in  his  behalf.'  .  .  .  The  right  to 
compulsory  process,  secured  by  the  provisions  of  the  Constitution,  above 
referred  to,  cannot  be  taken  away  by  legislative  enactment,  and  ought 
not  to  be  hampered  by  judicial  construction.  The  Legislature,  so  far 
from  attempting  to  restrict  this  right,  have  expressly  recognized  it,  and 
provided  ample  means  for  its  full  enjoyment.     Section  8  of  chapter  146 


448  PRIVILEGE.  No.  446. 

of  the  Wisconsin  Revised  Statutes,  page  724,  is  in  the  following  words : 
'It  shall  not  be  necessary  to  pay  or  tender  any  fees  to  any  witness  who 
is  subpoenaed  in  any  criminal  prosecution,  but  every  such  witness  shall 
be  bound  to  attend,  and  be  punishable  for  nonattendance,  in  the  same 
manner  as  if  the  fees  allowed  by  law  had  been  paid  him.'  By  no  rule 
of  construction,  can  this  section  be  restricted  to  witnesses  subpoenaed 
on  behalf  of  the  state.  It  is  evidently  enacted  in  aid  of  the  constitu- 
tional guaranty  above  mentioned,  and  includes,  as  well  the  witnesses 
for  the  defendant,  as  those  for  the  State. 

"But,  it  is  urged,  that  this  section  of  the  statute,  if  held  to  refer  to 
witnesses  summoned  on  behalf  of  the  defendant,  is  repugnant  to  that 
provision  of  the  Constitution,  which  provide  that  'the  property  of  no 
person  shall  be  taken  for  public  use,  without  just  compensation  there- 
for.' The  time  and  labor  of  attendance  of  the  witness  are  said  to  be 
as  much  property,  within  the  meaning  of  the  Constitution,  as  are  chat- 
tels or  land.  .  .  .  But,  in  no  just  sense,  can  the  requisition  upon  the 
citizen  of  his  attendance  upon  the  Courts  to  testify  as  a  witness,  be 
considered  as  the  taking  of  private  property  for  public  use,  within  the 
meaning  of  the  Constitution.  The  object  of  that  provision  in  the 
fundamental  law,  was  to  protect  the  citizen  from  the  grasping  demands 
of  government,  not  to  absolve  him  from  any  of  those  various  personal 
duties  which  every  good  citizen  owes  to  his  country ;  such  as  the  per- 
formance of  militia  duty,  obedience  to  the  call  of  the  proper  authority 
for  his  personal  service  in  suppressing  a  riot,  the  apprehension  of  a 
felon,  affording  assistance  to  officers  in  making  arrests  when  resisted, 
and  the  like.  There  are  very  many  instances  in  which  the  citizen  is 
required  to  perform  personal  service,  or  render  aid  to  his  government, 
without  other  compensation  than  that  of  his  participation  in  the  general 
good,  and  his  enjoyment  of  the  general  security  and  advantage  which 
result  from  common  acquiescence  in  such  obligations  on  the  part  of  all 
the  citizens  alike,  and  which  is  essential  to  the  existence  and  safety  of 
society.  .  .  .  We  hold,  therefore,  that  a  witness  is  bound  to  obey  the 
process  of  subpoena  in  a  criminal  prosecution,  as  well  on  the  part 
of  the  defendant  as  on  that  of  the  State,  without  payment  or  tender  of 
fees. 

"But  it  does  not  follow  that  the  refusal  by  the  Court,  to  grant 
an  attachment  against  the  witness  for  non-attendance,  is  error.  The 
award  of  the  attachment  rests  in  the  sound  discretion  of  the  Court, 
to  whom  application  was  made,  and  whose  process  is  disobeyed.  It 
is  somewhat  like  a  motion  for  continuance,  or  new  trial,  and  other 
like  matters  addressed  to  the  discretion  of  the  Court,  the  refusal  of 
which  is  not  necessarily  error,  and  only  becomes  so  when  that  dis- 
cretion is  clearly  abused,  to  the  manifest  injury  of  the  party,  or  to  the 
perversion  of  justice.  No  such  abuse,  nor  indeed  any  abuse  of  dis- 
cretion, appears  in  this  case.  It  is  true,  the  defendant  in  his  affidavit, 
alleges  that  the  witness  was  material.  But  he  does  not  apply  for  a 
continuance  on  account  of  his  absence;  he  does  not  state  that  he  can- 


No.  447.  TESTIMONIAL   DUtY    IN    GENERAL.  449 

not  prove  the  same  facts  by  other  witnesses,  or  that  he  cannot  safely 
proceed  to  trial  without  his  testimony;  nor  does  any  fact  appear,  that 
m  the  least  evinces  an  improper  exercise  of  the  discretion  of  the  court. 
All  that  does  appear  is,  that  the  court  assigned  an  erroneous  reason 
for  its  judgment,  which  may,  for  aught  that  is  apparent  upon  the  rec- 
ord, have  been  correct."* 


PEOPLE  V.  DAVIS    (1836). 

75  Wand.  602,  608. 

The  defendant  was  brought  up  on  an  attachment  for  disobedience 
to  a  subpoena  served  upon  him  to  attend  as  a  witness  for  the  plain- 
tiff in  a  cause  of  Kelley  v,  De  Forrest,  noticed  for  trial  at  the 
^^^  Warren  circuit,  on  the  first  Tuesday  of  Juae  last.  The  defend- 
ant was  duly  subpoenaed  on  the  26th  May,  (13  days  before  the  cir- 
cuit,) at  the  city  of  New-York,  where  he  resided.  Ten  dollars  were 
given  to  him  to  pay  his  expenses.  He  did  not  attend.  Being  brought 
into  court,  interrogatories  were  filed,  to  which  he  answered.  .  .  .  The 
substance  of  the  answers  is  that  he  is  entirely  insolvent,  and  had, 
when  subpoenaed,  delivered  up  all  his  property  without  reserve,  into 
the  hands  of  his  assignees  under  the  insolvent  law,  except  what  was 
exempt  from  execution;  that  he  had  a  wife  and  three  children  for 
whom  he  provided,  and  that  two  of  his  children  were  at  the  time  when 
the  subpoena  was  served,  and  up  to  the  time  of  the  circuit,  so  sick  as 
as  to  render  it  improper  for  him  to  leave  them;  that  his  family  were 
wholly  dependent  on  his  daily  labor  for  their  daily  support,  and 
that  they  must  have  suffered,  if  left,  for  the  common  necessaries  of 
life ;  that  his  wife  was  unable  to  attend  the  children  alone  during 
nights,  and  he  could  not  procure  her  any  assistance;  that  the  ten  dol- 
lars which  he  received  as  witness'  fees  would  not,  as  he  believes,  have  de- 
frayed his  expenses  of  travel  by  the  public  conveyances ;  that  he  ad- 
vised with  his  friend,  and  leaving  the  fees  with  him,  procured  him  to 
write  to  the  plaintiff's  attorney,  stating  his  excuse.  ,  .  . 

CowEN,  J. :  "It  was  the  duty  of  the  witness  to  obey  the  subpoena ; 
and  he  is  guilty  of  a  contempt  in  disregarding  it,  and  must  be  pun- 
ished unless  he  has  furnished  us  with  a  legal  excuse.  Both  insolvency 
and  poverty  in  the  witness  are  sworn  to  by  himself  and  Mr.  Lamb, 
who  was  one  of  his  assignees.  Rut  it  is  scarcely  necessary  to  observe 
that  these  form  no  excuse  in  the  abstract.  If  received  at  all  it  must 
be  in  connection  with  the  situation  of  the  family,  or  as  showing  the 
utter  inability  of  the  defendant  to  defray  his  expenses.  In  render- 
ing these  excuses  of  sickness  and  extreme  poverty,  while  we  are  not 
disposed  to  deny  the  validity  of  either  if  clearly  made  out  in  a  proper 
degree,  we  cannot  allow  the  witness  to  judge  for  himself.  Were  we 
to  stop  and  be  content  with  his  telling  us  in  this  general  way,  'some 

4 — Compare  the  authorities   cited   in   W.,  §§  2191,   2192. 


450  PRIVILEGE.  No.  447. 

of  my  family  were  so  sick  that,  with  want  of  assistance  and  consider- 
ing our  poverty,  I  deemed  it  improper  to  leave  home,'  we  should  sur- 
render our  own  judgment.  .  .  .  The  process  of  subpoena  demands  great 
and  extraordinary  efforts  on  the  part  of  the  witness  to  obey.  It  com- 
mands him  expressly  to  lay  aside  his  business  and  excuses ;  and,  while 
it  lays  him  under  severe  obligations,  it  clears  away  obstructions  in  the 
path  of  obedience ;  the  witness  was  always  privileged  from  arrest  on 
civil  process  in  going,  staying,  and  returning.  It  is  not  denied  that 
serious  sickness  in  his  family,  such  as  would  prevent  a  prudent  father 
or  husband  from  leaving  home  on  his  own  important  business,  would 
save  him  from  the  imputation  of  a  contempt  and,  perhaps  from  an 
action.  But  such  a  cause  ought  clearly  to  be  shown  to  the  Court. 
.  .  .  Above  all,  where  the  summons  allows  him  full  time,  he  should 
struggle  to  get  ready,  as  he  would  to  go  abroad  on  his  own  pressing 
business.  If  inevitably  disappointed,  after  exhausting  every  reason- 
able expedient,  he  ought  certainly  to  be  excused  from  the  payment  of 
a  penalty  which  presupposes  some  degree  of  neglect,  at  least.  Wit- 
nesses are  the  summary  instruments  of  investigation  in  all  our  common- 
law  courts.  It  is  not  until  a  positive  disability  is  apparent  that  their 
domestic  examination  will  be  received  as  a  substitute  for  their  actual 
presence.  The  important  right  of  oral  examination  and  cross-examina- 
tion is  at  stake;  and  every  good  citizen,  if  he  could  be  supposed  to 
regard  nothing  beyond  his  own  rights,  should  struggle  for  the  front 
rank  in  the  order  of  obedience.  The  least  we  can  say  of  the  case 
before  us  is,  that  it  presents  an  unpleasant  contrast  to  all  this;  great 
diligence,  from  first  to  last,  in  devising  colorable  excuses,  without  lift- 
ing a  finger  in  preparation  to  go  forward.  The  defendant  must  be 
fined,  and  the  fine  ought,  at  least,  to  be  so  large  as  to  indemnify  the 
plaintiff  Kelly  against  the  expenses  of  the  last  circuit,  with  the  costs 
of  this  proceeding."^ 


New  York  Commissioners  (David  D.  Field  and  others)  of  Prac- 
tice AND  Pleading,  First  Report,  250  (1848)  :  "Can  there  be  a  doubt 
that,  under  our  present  system,  the  rights  of  witnesses  are  gross- 
ly disregarded?  Why  should  the  law  permit  a  person  to  be 
taken  from  Suffolk  to  Niagara  against  his  will,  and  at  great  sacrifice, 
because  two  persons  in  Niagara  have  a  legal  dispute?  The  loss  to  the 
witness  may  be  more  than  the  whole  subject  of  litigation.  Does  not 
the  law  in  this  case  inflict  a  greater  wrong  that  it  may  redress  a 
less  ?  We  think  it  does ;  and  we  propose  to  prevent  it  hereafter,  by 
declaring  that  no  person  shall  be  taken  hereafter  out  of  his  own  county 
for  another  person's  civil  action.  .  .  .  There  should  seem,  moreover, 
to  be  no  good  reason  to  require  the  personal  attendance  of  a  witness  at 
so  great  a  sacrifice.  No  doubt,  his  appearance  upon  the  stand,  where 
the   testimony  may  be  taken   from  his   lips,  is  preferable  to  a  written 

S — Compare  the  authorities  cited  in  W.,  §  2204. 


No.  450.  TESTIMONIAL   DUTY    IN    GENERAL.  451 

deposition,  taken  at  a  distance.  But  that  is  not  the  only  question.  The 
point  is  this,  whether  the  increased  advantage  to  the  parties  of  having 
the  judge  and  jury  see  the  witness,  is  more  than  a  counterpoise  to  the 
increased  injury  to  the  witness  from  being  brought  so  far,  and  at  so 
great  a  loss.  We  think  the  question  can  be  answered  in  only  one  way. 
In  his  own  county  let  him  be  called  to  the  stand.  If  it  be  wanted  in 
another,  let  it  be  taken  in  his  own,  and  transmitted  thither.  Should 
there  be  a  really  urgent  occasion  for  the  personal  attendance  of  the 
witness,  there  can  be  little  doubt  that  the  party  may  be  able  to  induce 
him  to  attend,  by  compensating  him  for  his  expenses  and  time.  So 
it  is  now,  where  a  witness  is  wanted  from  another  State ;  the  party 
makes  an  arrangement  with  him  to  come  in  many  cases  where  his 
attendance  is  important.  If  a  witness  in  Jersey  City  be  wanted  for  a 
trial  in  New  York,  he  can  generally  be  induced  to  attend,  though  he 
cannot  be  compelled  to  do  so.  So  it  will  happen,  we  doubt  not,  if  our 
plan  be  adopted." 


Statutes:  California,  P.  C.  1872,  §1330:  "No  person  is  obliged 
to  attend"  out  of  the  county  of  residence  or  of  service  of  subpoena, 
unless  a  subpoena  is  indorsed  by  the  trial  judge's  order,  or  a 
*  judge  of  the  Supreme  or  Superior  Court,  on  afhdavit  of  the  party 

"stating  that  he  believes"  the  evidence  to  be  material  and  attendance 
necessary. 

United  States,  Rev.  St.  1878,  §  870 :  No  witness  is  compellable 
to  attend  for  a  dcdimus  deposition  "out  of  the  county  where  he  resides, 
nor  more  than  40  miles  from  the  place  of  his  residence."  lb.,  §876: 
In  civil  cases,  a  subpoena  shall  not  run  more  than  100  miles  from  the 
place  of  the  court,  if  the  witness  lives  out  of  the  district  of  the  court.* 


SUB-TITLE   II. 
PRIVILEGED  TOPICS. 

DOE  dem.  EGREMONT  v.  DATE    (1842). 
3  Q.  B.  609,  621. 
Ejectment    for    lands   in    Somersetshire.     The   lessor   of   the   plain- 
tift,  George,   Earl  of  Egremont,  claimed  under  the  demise  of  Charles, 
late  Earl  of  Egremont,  who  died  in   1763,  leaving  his  will  dated 
*""      30th    July,    1761.     By  the   will,    lands   were   devised   to    George 
O'Brien,  late  Earl  of  Egremont,  for  life,  with  limitations  over  in  re- 
remainder,  under  which  remainder  the  lessor  of  the  plaintiff  was  now 
entitled  as  tenant  in  tail.  ...  In  order  to  show  that  the  lands  in  ques- 
tion were  part  of  the  lands  devised,  and  had  been  the  property  of  the 
devisor,  it  was  proposed  to  prove  that  they  had  been  held  by  the  tenant 

6 — Compare   the  authorities   cited   in   W.,  §  2207. 


452  PRIVILEGED   TOPICS.  Ko.  450. 

for  life,  the  late  George  O'Brien,  Earl  of  Egremont,  as  landlord.  The 
evidence  opened  in  support  of  this  was  a  rent  book,  belonging  to  the 
late  tenant  for  life,  and  now  in  the  hands  of  his  executor.  Colonel 
Wyndham,  in  which  was  an  entry  of  the  receipt  of  rent  for  his  prop- 
erty, by  the  steward  of  the  tenant  for  life,  in  1800.  A  subpoena  duces 
tecum,  to  produce  the  book,  was  served  on  Colonel  Wyndham :  and 
(by  consent  of  the  parties)  Mr.  Murray,  Colonel  Wyndham's  attorney, 
appeared  for  him,  with  it.  .  .  .  He  then  objected  to  produce  the  rent 
book,  on  the  ground  that  it  was  a  document  relating  to  the  title  of 
Colonel  Wyndham;  but  the  learned  judge  overruled  the  objection; 
and  the  book  was  produced.     Verdict  for  the  plaintiff. 

Sir  W.  W.  Follett,  Erie,  Crozvder,  and  Montague  Smith  showed 
cause:  "First,  even  if  the  witness  was  not  compellable  to  produce  the 
book,  that  is  no  ground  for  a  new  trial  on  the  application  of  one  of 
the  parties.  The  book  being,  in  itself,  legitimate  evidence,  what  right 
has  the  party  against  whom  it  is  produced  to  make  the  objection?  The 
only  person  injured,  if  any,  is  the  owner  of  the  book:  but  he  is  not 
the  party  making  the  application."  Lord  Denman,  C.  J.:  "Surely 
injustice  is  done  to  the  defendant  if  that  is  admitted  in  evidence  against 
him  which  ought  not  to  have  been  admitted.  It  seems  very  difficult  to 
say  that  such  a  situation  is  not  to  be  reviewed." 

Kelly,  Bere  and  Butt,  contra.  .  .  .  "Even  where  the  judge  directs 
the  witness  to  produce  the  evidence,  if  the  witness  still  refuse,  all  that 
the  judge  can  do  is  to  punish  him  for  contempt;  and  yet,  if  the  judge 
improperly  refuse  to  order  the  evidence  to  be  produced,  it  is  admitted 
that  this  is  a  ground  for  a  new  trial."  Patteson,  J. :  "Taking  that 
to  be  so,  it  shows  only  that  a  party  to  the  suit  has  a  right  to  complain 
that  the  judge  has  not  exercised  on  his  behalf  the  power  which  ought 
to  have  been  exercised;  but,  where  a  judge  refuses  to  protect  a  wit- 
ness from  giving  the  evidence,  that  is  not  a  decision  against  either  party 
in  the  cause."  .  .  . 

Lord  Denman,  C.  J.:  "With  respect  to  the  preliminary  point,  I 
may  perhaps  have  expressed  myself  too  strongly  during  the  argument, 
considering  the  case  of  Marston  v.  Downes,  i  A.  &  E.  31,  which  was 
not  present  to  my  mind  at  the  moment.  I  must  own,  however,  that 
I  am  not  altogether  satisfied  with  the  principle  of  that  decision.  Per- 
haps I  might  be  inclined  to  put  the  argument  thus.  A  party  to  a  suit 
has  a  right  to  insist  that  no  evidence  shall  be  produced  against  him, 
except  such  as  can  be  given  legally.  Now,  if  a  witness  be  compelled 
by  a  judge  at  Nisi  Prius  to  produce  a  title-deed  which  he  is  legally 
entitled  to  withhold,  it  strikes  me  that  the  party  to  the  suit  against 
whom  the  evidence  is  produced,  is  affected  by  that  which  ought  not 
to  have  been  laid  before  the  jury.  .  .  .  These  observations,  however, 
are  only  thrown  out  for  the  purpose  of  indicating  a  doubt  upon  a  ques- 
tion of  considerable  importance,  which  seems  to  me  to  have  arisen  quite 
unnecessarily  in  this  case.  For  I  have  not  the  Jeast  doubt  that  the 
-witness   was   compellable   to   produce  the  book   in   question."  .  .  . 


No.  451.  SUNDRY    PRIVILEGES.  453 

Coleridge,  J. :  "...  I  must  say  that  I  entertain  great  doubt 
whether  we  could  have  reviewed  the  decision  of  the  learned  judge. 
There  is  a  very  broad  distinction  between  cases  where  the  privilege 
has  been  allowed,  and  those  where  it  has  been  disallowed.  In  the 
former  case,  a  party  has  been  precluded  from  proving  that  which  he 
was  entitled  to  prove.  In  the  latter  case,  the  party  whose  privilege 
has  been  disallowed  has  no  locus  standi  in  banc.  I  recollect  a  case  on 
the  western  circuit,  in  which  I  was  retained  as  counsel  for  a  witness, 
to  resist  his  being  compelled  to  produce  some  evidence.  Mr.  Justice 
Park,  who  was  perfectly  familiar  with  the  course  of  practice  at  Nisi 
Prins,  would  not  for  a  moment  allow  me  to  appear  in  that  character. 
He  said,  'I  must  be  left  to  take  care  of  the  witness,  and  I  alone;  I 
shall  not  hear  counsel  on  his  behalf.'  If  counsel  cannot  be  heard  for 
a  witness  at  Nisi  Prins,  certainly  he  cannot  be  heard  for  that  witness 
in  banc.  And,  if  the  witness  cannot  call  upon  us  to  review  the  deci- 
sion, can  the  party  to  the  cause  do  so  ?  Legitimate  evidence  has  been 
produced  against  him :  he  is  not  prejudiced  by  that,  and  can  have  no 
ground  of  complaint."'^ 


I.    Sundry  Privileged  Topics. 

WALKER'S  TRIAL    (1794). 

2j  Hozv.  St.  Tr.  iup8. 

Mr.  Erskine,  cross-examining  Thomas  Dunn :     "Who  gave  you  the 
[glass  of]   shrub  the  next  day?"     Witness:  "Suppose  a  gentleman  was 
so   friendly  as  to  give  me  a  glass  of  shrub,  is  that  anything?" 
^  Counsel:     "I  am  not  finding  fault  with  it;  who  was  it?"     Wit- 

ness: "I  do  not  know  whether  that  is  to  be  answered  or  not.  ...  I 
do  not  suppose  that  is  any  material  matter."  Mr.  Justice  Heath  : 
"You  have  nothing  to  do  whether  it  is  material  or  no ;  answer  the 
question."^ 

7 — Porter,  J.,  in  Great  Western  Turn-  8 — Gamble,  J.,  in  Ex  parte  McKee,  18 
pike  Co.  V.  Loomis,  32  N.  Y.  127,  138  Mo.  599,  601  (1853):  "The  opinion  of 
(1865):  "Strictly  speaking,  there  is  no  the  witness  that  the  question  is  irrelevant 
case  in  which  a  witness  is  at  liberty  to  is  entitled  to  no  consideration.  If  a  mere- 
object  to  a  question.  That  is  the  office  of  ly  frivolous  or  impertinent  question  were 
the  party  or  of  the  Court.  The  right  of  asked  of  a  witness,  the  officer  taking  the 
the  witness  is  to  decline  an  answer,  if  the  deposition  might  not  feel  himself  called 
Court  sustains  his  claim  of  privilege.  When  upon  to  compel  an  answer;  but  it  would 
the  question  is  relevant,  it  cannot  be  ex-  only  be  in  a  very  plain  case  of  impertinence 
eluded  on  the  objection  of  the  party,  and  that  he  would  undertake  to  decide  that 
the  witness  is  free  to  assert  or  to  waive  the  witness  should  be  allowed  to  avoid 
his  privilege.  But  when  the  question  is  answering.  The  Court  in  which  the  cause 
irrelevant  the  objection  properly  proceeds  is  pending  will  at  the  trial  reject  irrele- 
from  the  party,  and  the  witness  has  no  vant  evidence,  and  it  would  greatly  de- 
concern  in  the  matter  unless  it  be  over-  tract  from  the  value  of  our  statutes  which 
ruled  by  the  judge."  authorize  the  taking  of   depositions,   if  the 

Compare     the     authorities    cited    in    \V.,  question    of    relevancy    was    to    be    raised 

§  2196.  before    and    decided    by    every    justice    of 


454 


PRIVILEGED    TOPICS. 


No.  452. 


DOE  dem.  EGREMONT  v.  DATE    (1842). 

3  Q.  B.  6op,  617. 

The  facts  and  the  testimony  offered  in  this  case,  as  well  as  the  ob- 
jection made,   have  been  set  forth  ante,  No.  450. 

Denman,    L.   C.   J.    (compelling  the  witness   to  produce  the 
*  book)  :     "[The  executor]  possessed  it  in  the  character  of  execu- 

tor of  the  late  tenant  for  life ;  when  produced,  it  proved  the  fact  of  pay- 
ment of  rent  to  his  testator.  Why  was  the  witness  not  to  prove  that 
fact,  either  by  his  personal  knowledge,  if  the  party  calling  him  chose 
to  question  him,  or  by  any  paper  which  he  might  possess?  Such  a 
paper  was  not  a  title-deed,  nor  within  the  protection  of  the  rule  which 
exempts  witnesses  from  producing  documents  in  the  nature  of  title- 
deeds.  The  production  of  the  paper  was  a  mode  of  proving  a  fact ; 
that  this  fact  might  be  injurious  to  some  interest  of  his  own  furnishies 
no  reason  for  his  not  producing  the  book.  I  consider  him  strictly  as 
a  witness ;  ...  he  is  indeed  an  interested  witness,  but  he  does  not 
therefore  possess  the  privilege,  which  a  party  to  the  cause  would 
have,  of  refusing  to  give  evidence."^ 


DOBSON  V.  GRAHAM    (1889). 
49  Fed.  R.  17  (C.  C,  E.  D.  Pa.) 

Bill  to  enjoin  infringement  of  patent  by  John  Dobson  against  Rich- 
ard Graham.  Plaintiff  called  defendant's  workmen  to  show  infringe- 
ment, and  asked  them  to  state  wherein  the  defendant's  machine 
**^  differed  from  complainant's.  This  they  refused  to  do  under 
advice  of  counsel.  Plaintiff  moves  for  an  inspection  of  defendant's 
machinery,  and  to  compel  the  witnesses  to  answer  interrogatories.  Mo- 
tions denied. 

Butler,  J. :  "These  motions  must  be  dismissed  for  the  reasons 
stated  at  an  earlier  period  in  the  case.  As  then  said,  the  plaintiff  filed 
his  bill  charging  infringement  of  his  rights  without  having  any  posi- 
tive knowledge  upon  the  subject.  He  seems  to  have  relied  upon  the 
chance  of  obtaining  evidence  to  support  the  charge  from  the  defendant 
and  his  workmen.  Such  a  case  is  not  entitled  to  special  favor  of  a 
court  of  equity.  The  defendant's  business  is  conducted  in  private,  for 
the  purpose  of  securing  to  himself  (as  he  asserts)  the  use  of  his  pecu- 
liar machinery  and  methods  of  manufacture.  These  secrets  of  his 
business,  if  they  cover  nothing  unlawful,  are  his  property  and  as  well 


the  peace  or  other  ofilcer  who  takes  a 
single  deposition  in  the  cause,  when  he 
cannot  know  the  aspect  which  the  case 
will  probably  assume  at  the  trial.  To  al- 
low the  witness  himself  to  pass  upon  the 
question  of  relevancy  and  refuse  to  an- 
swer  such    questions   as   he    thought   irrele- 


vant, would  be  to  deprive  the  party  of  the 
testimony   of    every    unwilling   witness." 

Compare  the  authorities  cited  in  \V., 
§  2210. 

9 — Compare  the  authorities  cited  in  W., 
§  2211. 


No.  454.  SUNDRY    PRIVILEGES.  455 

entitled  to  protection  as  the  rights  secured  by  the  plaintiff's  patent. 
His  workmen  are  bound  by  express  contract  not  to  divulge  them.  In 
the  absence  of  such  contract  equity  would  imply  an  obligation  of  equal 
force.  If  it  were  shown  that  these  secrets  are  used  as  a  cloak  to 
cover  an  invasion  of  the  plaintiff's  rights,  or  if  there  was  reliable  evi- 
dence tending  to  show  it,  and  justifying  a  belief  that  they  are  sound, 
the  motions  would  be  sustained.  But  there  is  no  such  evidence  before 
us.  It  appears  that  the  defendant  employs  certain  workmen  who  were 
formerly  employed  by  the  plaintiff;  that  these  workmen  are  familiar 
with  the  plaintiff's  patented  machinery,  and  that  they  aided  in  con- 
structing the  defendant's.  This  is  substantially  all.  These  workmen 
have  been  permitted  to  answer  questions  directed  towards  a  compari- 
son of  the  defendant's  machinery  with  the  plaintiff's  except  where  the 
answer  would  tend  to  describe  wherein  the  former  differed  from  the 
latter,  and  thus  to  describe  the  peculiarities  of  the  defendant's  ma- 
chinery. The  Court  cannot  properly  compel  them  to  go  further,  nor, 
in  this  state  of  facts,  compel  the  defendant  to  submit  his  machinery 
to  inspection."^" 


FREE  V.  BUCKINGHAM    (1879). 
5P  N.  H.  219,  225. 

The  bill  alleged  a  deed  fraudulently  made  by  the  defendant  Buck- 
ingham, as  attorney  of  the  plaintiffs,  to  the  defendant  Young,  and  con- 
tained a  prayer  that  the  deed  be  set  aside,  and  for  other  relief. 
***  .  .  .  Upon  cross-examination  of  Mr.  Free,  one  of  the  plaintiffs, 
the  defendants'  counsel  asked  him,  "Are  you  a  Spiritualist?"  The 
question  being  objected  to,  the  defendants'  counsel  claimed  the  right 
to  make  inquiries  of  this  kind,  "as  affecting  the  credit  of  the  wit- 
ness." The  witness  answered  several  other  questions  of  a  similar 
character.  The  defendants'  counsel  finally  inquired  of  the  witness 
whether  the  spirit  of  Daniel  Webster  was  present  aiding  him  in  the 
trial  of  the  cause,  and  whether  he  had  received  and  availed  himself 
of  information  from  departed  spirits,  disclosing  the  character  and  the 
method  of  the  defence.  The  referee,  being  of  the  opinion  that  the 
examination  on  this  point  had  proceeded  far  enough,  rejected  the  last 
named  questions,  and  others  of  a  similar  character,  and  the  defendants 
excepted.  .  .  . 

Foster,  J. :  "There  was  no  error  of  law  in  the  referee's  refusal  to 
allow  the  plaintiff,  Mr.  Free,  to  be  asked,  on  cross-examination,  whether 
the  spirit  of  Daniel  Webster  was  present  aiding  him  in  the  trial,,  and 
whether  he  had  been  assisted  by  departed  spirits  in  obtaining  informa- 
tion of  the  defence.  Nor  would  it  have  been  error  of  law  to  allow 
those  questions  to  be  put.  It  was  a  question  of  fact  how  far  the  pro- 
posed  inquiry   could   usefully   go    for   the  purpose  of   discovering  the 

10 — Compare  the  authorities  cited  in  W.,  §  2212. 


456 


PRIVILEGED   TOPICS, 


No.  454. 


credit  of  the  witness.  His  testimony  or  other  evidence  might  have  been 
of  such  a  character  that  hght  would  be  thrown  upon  it  by  a  disclosure 
of  his  spiritualistic  faith  or  practice;  and  his  testimony  and  the  case 
might  have  been  such  that  there  was  no  occasion  to  call  for  any 
disclosure  on  that  subject. 

"It  is  not  claimed  that  the  peculiarity  of  Free's  religious  belief 
affected  his  capacity  as  a  witness,  but  only  his  credibility.  Upon  cross- 
examination,  a  witness  may  be  asked  any  questions  which  tend  to  test 
his  accuracy,  veracity,  or  credibility,  or  to  shake  his  credit  by  injuring 
his  character ;  and  to  this  end  his  way  of  life,  his  associations,  his 
habits,  his  prejudices,  his  mental  idiosyncracies  (if  they  affect  his  capac- 
ity), may  all  be  relevant.  But  it  is  not  customary  in  modern  practice 
to  permit  an 'inquiry  into  a  man's  peculiarity  of  religious  belief.  This 
is  not  because  the  inquiry  might  tend  to  disgrace  him,  but  because  it 
would  be  a  personal  scrutiny  into  the  state  of  his  faith  and  conscience, 
contrary  to  the  spirit  of  our  institutions.  A  man  is  competent  to  tes- 
tify who  believes  in  the  existence  of  God  and  that  divine  punishment, 
either  in  this  life  or  the  life  to  come,  will  be  the  consequence  of  perjury. 
No  judicial  tribunal  is  bound  to  inquire,  nor  ordinarily  will  inquire 
whether  a  witness  be  a  Protestant  or  Romanist,  Trinitarian  or  Uni- 
tarian, a  Shaker,  Mormon,  Jew,  or  Gentile,  a  Spiritualist  or  a  Ma- 
terialist."" 


STATE  V.   HILMANTEL    (1868). 
23    IVis.   422,   423. 

At  the  annual  election  for  county  officers  of  Milwaukee  county,  in 
November,  1866,  Hilmantel  received  a  majority  of  the  votes  cast  for 
the  office  of  clerk  of  the  board  of  supervisors  of  said  county; 
*^  and,  having  received  the  certificate  of  election,  he  entered  upon, 
the  duties  of  the  office.  The  complainant  was  the  opposing  candidate  for 
said  office  at  that  election,  and  brought  this  action  to  try  Hilmantel's 
title,  alleging  that  a  portion  of  the  votes  cast  for  the  latter,  greater 
in  number  than  his  majority,  were  received  in  violation  of  the  pro- 
visions of  the  registry  act,  chap.  445,  Laws  of  1864.  .  .  .  The  verdict 
being  in  favor  of  the  defendant,  the  complainant  moved  in  this  court 
for  a  new  trial,  on  the  ground  of  alleged  errors  in  the  rulings  of  the 
circuit   court   on   questions   of   evidence.  .  .  , 

Dixon,  C.  J. :  "The  exception  taken  to  the  ruling  of  the  Court  ex- 
cluding the  question  put  to  the  witness  Newbauer,  involves  a  point 
of  very  considerable  importance.  It  is,  whether  a  person  generally 
qualified  under  the  constitution  and  laws  to  be  a  voter,  but  disqualified 
by  reason  of  his  non-compliance  with  requirements  of  the  registry  act, 
to  vote  at  a  particular  election,  and  who  was  notwithstanding  per- 
mitted to  vote  at  such  election,  can  be  compelled,  against  his  will,  to 

11 — Compare  the  authorities  cited  in  W.,  §2214. 


No.  456.  SUNDRY    PRIVILEGES.  457 

disclose  in  a  court  of  justice  the  name  of  the  person  for  whom  he 
voted.  At  the  request  of  the  defendant's  counsel,  the  Court  instructed 
the  witness  that  he  might  decline  to  answer  the  question  if  he  saw  fit. 
He  declined,  and  the  plaintiff  excepted  to  the  decision  of  the  Court. 
Does  the  privilege  of  the  secret  ballot,  conceding  it  to  exist,  extend 
to  a  person  who  voted  illegally?  In  answering  this  question,  it  is  plain 
that  no  distinction  can  be  made  between  different  individuals  or  classes 
of  individuals  who  vote  in  actual  violation  of  the  law.  We  cannot 
discriminate  between  such  as  have  some  or  most  of  the  requisite  legal 
qualifications  to  entitle  them  to  vote  and  those  who  have  none.  If  one 
person  who  votes  illegally  may  claim  the  privilege,  then  all  may  do 
so.  Can  a  person  who  under  no  circumstances  would  have  been  en- 
titled to  vote,  but  who  nevertheless  did  vote,  claim  the  privilege?  Can 
such  an  one,  who  procures  his  vote  to  be  received  by  fraud  or  force, 
or  through  the  mistake,  inadvertence  or  corruption  of  the  inspectors, 
claim  the  privilege?  In  reason  and  justice  we  say  not;  and  if  he 
cannot,  then  any  other  person  who  votes,  having  no  legal  right,  can- 
not, even  though  the  giving  and  receiving  of  the  vote  involves  no 
moral  guilt  or  intentional  violation  of  the  law  on  the  part  of  either 
the  voter  or  inspectors.  The  turning  point  of  the  inquiry  is,  whether 
the  privilege  is  confined  to  persons  voting  lawfully.  We  think  that 
it  is.  It  is  said  to  spring  from  the  policy  of  the  statute,  which  author- 
izes legal  voters,  but  no  others,  to  vote  by  ballot.  It  would  seem  to 
be  a  most  obvious  perversion  of  this  policy,  were  the  privilege  extended 
to  persons  not  within  the  statute,  but  who  acted  in  direct  opposition 
to  it.  Thus  we  think  that  the  peculiar  right  or  immunity  of  the  lawful 
voter,  growing  out  of  the  policy  of  the  law  with  regard  to  such  per- 
sons, cannot  be  claimed  by  one  who  is  not  a  lawful  voter."^^ 


COOK'S  TRIAL    (1696). 

IS  How.  St.  Tr.  334. 

A  juror  was  asked  by  the  defendant  whether  the  juror  had  said 
that  he  believed  Cook  to  be  guilty.  Att.  Gen.:  "My  lord,  he  must  not 
ask  the  jury  that  question,  whether  they  have  declared  before, 
that  they  will  find  him  guilty ;  that  is  to  make  them  guilty  of 
a  misdemeanor."  Serj.  Darnall:  "Is  it  any  misdemeanor  for  me  to 
say,  I  think  or  believe  such  a  man  is  guilty?"  ...  I  think  any  man,  my 
lord,  that  comes  to  serve  upon  the  jury,  may  be  asked  any  question  that 
does  not  make  him  guilty  of  any  offence  or  crime,  or  liable  to  any 
punishment:  Now  if  any  of  these  gentlemen  that  are  returned  upon 
this  pannel.  before  the  summons  have  declared  their  opinion  that  the 
prisoner  is  guilty,  or  ought  to  suffer;  with  submission,  the  prisoner 
may  ask  such  a  question,  whether  he  have  said  so,  yea  or  no?" 

12 — Compare   the   authorities   cited  in  W.,  §  2213. 


458 


PRIVILEGED   TOPICS. 


No.  456. 


Just.  Powell:  "He  cannot  upon  a  Voyer  Dire  be  asked  any  such 
question." 

Just.  RoKEBY :  "It  is  not  denied  to  be  a  material  objection,  but  it 
must  be  made  out  by  proof." 

L.  C.  J.  Treby:  "You  put  it  too  large,  brother  Darnall;  you  may 
ask  upon  a  Voyer  Dire,  whether  he  have  any  interest  in  the  cause ; 
nor  shall  we  deny  you  liberty  to  ask  v/hether  he  be  fitly  qualified, 
according  to  law,  by  having  a  freehold  of  sufficient  value.  But  that 
you  can  ask  a  juror  or  a  witness  every  question  that  will  not  make  him 
criminous, — that  is  too  large.  Men  have  been  asked  whether  they 
have  been  convicted  and  pardoned  for  felony,  or  whether  they  have 
been  whipped  for  petty  larceny;  but  they  have  not  been  obliged  to 
answer;  for  though  their  answer  in  the  affirmative  will  not  make  them 
criminal  or  subject  them  to  a  punishment,  yet  they  are  matters  of  in- 
famy ;  and  if  it  be  an  infamous  thing,  that  is  enough  to  preserve  a 
man  from  being  bound  to  answer.  A  pardoned  man  is  not  guilty,  his 
crime  is  purged;  but  merely  for  the  reproach  of  it,  it  shall  not  be  put 
upon  him  to  answer  a  question  whereon  he  will  be  forced  to  forswear 
or  disgrace  himself.  .  .  .  The  like  has  been  observed  in  other  cases  of 
odious  and  infamous  matters  which  were  not  crimes  indictable." 


Common  Law  Practice  Commission,  Jervis  (later  C.  J.),  Cock- 
hum  (later  C.  J.),  Martin  (later  B.),  Walton,  Bramwell  (later  B.), 
and  Willes  (later  J.),  Second  Report,  22  (1853):  "With  re- 
'  g^rd  to  questions  which  do  not  tend  to  expose  the  witness  to 
prosecution  or  punishment,  but  which  tend  to  degrade  his  character 
by  imputing  to  him  misconduct  not  amounting  to  legal  criminality  or 
the  having  been  convicted  of  a  crime  the  punishment  of  vv^hich  has 
been  undergone,  the  law  of  England  (according  to  the  better  authori- 
ties) in  like  manner  protects  the  witness  from  answering,  unless  the 
misconduct  imputed  has  reference  to  the  cause  itself.  Should  this  rule 
be  maintained  ?  On  the  one  hand,  the  witness  may  have  been  recently 
convicted  of  perjury  or  some  other  form  of  the  crimen  falsi;  he  may 
have  become  infamous  by  his  offences  against  the  law  or  against  so- 
ciety ;  he  may  have,  to  his  own  knowledge,  acquired  a  bad  repute  for 
habitual  mendacity;  and  it  may  be  highly  important  that  the  jury  who 
are  to  weigh  his  testimony  should  be  made  aware  of  the  drawbacks 
which  thus  attach  to  it.  On  the  other  hand,  it  cannot  be  denied  that 
it  would  be  an  extreme  grievance  to  a  witness  to  be  obliged  to  disclose 
past  transactions  of  life  which  may  have  been  long  forgotten,  and 
to  expose  his  character  afresh  to  evil  report  and  obloquy  when  by 
subsequent  conduct  he  may  have  recovered  the  good  opinion  of  the 
world.  As  the  law  now  stands,  the  question  may  be  put,  but  the  wit- 
ness is  not  bound  to  answer ;  but  if  he  does  answer  and  denies  the 
imputation,  his  denial  is  conclusive  and  cannot  be  controverted.  It 
has  been  proposed  to  take  away  the  privilege  of  the  witness  and  to 


No.  458.  SUNDRY    PRIVILEGES.  459 

compel  him  to  answer.  We  cannot  bring  outselves  entirely  to  concur 
in  this  view.  We  have  already  pointed  out  the  effect  which  the  dread 
of  an  inquiry  of  this  nature  may  have  in  deterring  a  witness  from 
appearing  in  court.  To  this  may  be  added  that,  while  under  the  pres- 
ent system  the  refusal  to  answer  has  practically  the  effect  of  an  admis- 
sion, the  consequence  of  compelling  the  witness  to  answer  would  not 
improbably  be  to  induce  him  to  give  an  absolute  denial,  which  would 
not  be  open  to  contradiction.  On  the  balance,  then,  of  these  opposing 
considerations,  we  recommend  that  the  existing  law  should  be  main- 
tained, except  that  where  the  question  relates  to  the  conviction  of  the 
witness  of  perjury  or  any  other  form  of  crimen  falsi  and  the  witness 
either  denies  the  fact  or  refuses  to  answer,  the  conviction  should  be 
allowed  to  be  proved."^ 


LORD  MELVILLE'S  TRIAL    (1806). 
Hans.  Pari.  Deb.,  ist  Ser.,  VI,  170,  222,  2^4,  24^,  249. 

Questions  put  to  the  Judges:  "i.  Whether  according  to  law  a  wit- 
ness can  be  required  to  answer  a  question  relevant  to  the  matter  in 
issue,  the  answering  which  has  no  tendency  to  accuse  himself, 
*"^  but  the  answering  which  may  establish  or  tend  to  establish  that 
he  owes  a  debt  recoverable  by  civil  suit?  2.  W^hether  according  to  law 
a  witness  can  be  required  to  answer  a  question  relevant  to  the  issue, 
the  answering  of  which  would  not  expose  him  to  a  criminal  prosecution, 
but  might  expose  him  to  a  civil  suit  at  the  instance  of  His  Majesty  for 
the  recovery  of  profits  derived  by  him  from  the  use  or  application  of 
public  money  contrary  to  law?" 

Erskine,  L.  C,  in  giving  his  answer,  said  that  "he  had  been  for 
seven-and-twenty  years  engaged  in  the  duties  of  a  laborious  profession, 
and  while  he  was  so  employed,  he  had  the  opportunity  of  a  more  ex- 
tensive experience  in  the  courts  than  any  other  individual  of  his  time. 
It  is  true  that  in  the  profession  there  had  been,  and  there  now  were, 
men  of  much  more  learning  and  ability  than  he  would  even  pretend  to ; 
but  success  in  life  often  depended  more  upon  accident,  and  certain 
physical  advantages,  than  upon  the  most  brilliant  talents  and  profound 
erudition.  It  was  very  singular  that,  during  these  twenty-seven  years, 
he  had  not  for  a  single  day  been  prevented  in  his  attendance  on  the 
courts  by  any  indisposition,  or  corporeal  infirmity.  Within  much  the 
greater  part  of  this  period,  he  has  been  honoured  by  a  gown  of  preced- 
ency, and  in  consequence  of  this  privilege,  had  not  only  been  engaged 
in  every  important  cause,  but  had  conducted  causes  of  this  description 
during  that  period  in  the  court  of  King's  Bench.  .  .  .  Although  his  ex- 
perience was  equal  not  only  to  any  individual  judge  on  the  bench,  but 

I — Compare  the  authorities  cited  in  \V.,        Nos.    120-126),     and    for    privilege    against 
5  2216.      Compare   also   the   rules   for  scope       self-crimination    (post,    Nos.    473-480). 
of    cross-examination     to     character    (ante, 


460 


PRIVILEGED    TOPICS. 


No.  458. 


to  all  the  judges,  with  their  collective  practice;  yet,  he  never  knew  a 
single  objection  to  have  been  taken  to  an  interrogatory  proposed,  be- 
cause the  reply  to  it  would  render  the  witness  responsible  in  a  civil 
suit.  It  was  true,  that  in  Mr.  Peake's  book,  which  had  been  frequently 
cited  on  the  present  occasion,  there  was  a  note  by  which  it  should  ap- 
pear that  an  objection  of  this  kind  had  been  taken  by  the  late  Chief 
Justice  Kenyon;  but,  notwithstanding  his  high  opinion  of  the  minute 
accuracy  and  great  learning  of  that  reporter,  he  thought  he  had,  in 
this  instance,  been  guilty  of  a  mistake,  on  two  grounds:  ist,  because 
he  [Erskine]  himself  had  been  counsel  in  the  cause  and  had  no  recol- 
lection of  the  circumstances :  2dly,  because,  if  that  note  were  correct, 
Lord  Kenyon  must  have  been  guilty  of  an  obvious  contradiction  of  his 
own  principles  and  sentiments,  as  they  appeared  even  on  the  face  of 
the  same  report.  .  .  .  Notwithstanding  some  difference  of  opinion  among 
high  authorities,  among  persons  for  whom  he  had  the  greatest  venera- 
tion, yet  he  could  not  help  thinking  that  the  law  itself  was  unembar- 
rassed from  these  contradictions.  He  considered  it  so  far  precise,  clear, 
and  perspicuous,  that  it  was  necessary  no  new  law  should  be  promul- 
gated, otherwise  than  in  the  form  of  a  declaratory  law,  by  which  it 
should  be  announced  what  had  been  the  law,  what  was  the  law,  and  what 
ought  to  be  the  law,  and  what  shall  be  the  law  of  the  land  as  to  this 
important  particular."^ 


2.     Privilege  of  the  Party-Opponent  in  Civil  Cases. 

Sir  William   Blackstone,  Commentaries,  III,  382   (1768)  :     "The 
principal  defects   [of  the  common-law  trial  system]   seem  to  be,  i.  The 
want  of  a  complete  discovery  by  oath  of  the  parties.    This  each  of 
*^^      them  is  now  entitled  to  have  by  going  through  the  expense  and  cir- 
cuity of  a  court  in  equity.  ...  It  seems  the  height  of  judicial  absurdity 


2 — To  the  questions  above  quoted  the  an- 
swer was  "Yes,"  by  eight  judges,  Sutton, 
B.,  Graham,  B.,  Chambre,  J.,  Le  Blanc,  J., 
Heath,  J.,  Macdonald,  C.  B.,  EUenbor- 
ough,  C.  J.  of  K.  B.,  Erskine,  L.  €.,  with 
Lord  Eldon;  and  "No,"  by  five  judges, 
Grose,  J.,  Lawrence,  J.,  Rooke,  J.,  Thomp- 
son, B.,  and  Mansfield,  C.  J.  of  C.  P.; 
the  opinions  of  this  majority  seem  to  have 
been  treated  as  carrying  conclusive  weight; 
their  tenor  was,  in  general,  that  the  privi- 
lege extended  only  to  "such  questions  as 
would  expose  him  to  a  criminal  prosecu- 
tion or  to  a  penalty  or  forfeiture."  Par- 
liament then  passed  a  statute  as  follows: 
1806,  St.  46  Geo.  Ill,  c.  37:  "Whereas 
doubts  have  arisen  whether  a  witness  can 
by  law  refuse  to  answer  a  question  rele- 
vant to  the  matter  in  issue,  the  answering 
of  which   has   no  tendency   to   accuse   him- 


self or  to  expose  him  to  any  penalty  or 
forfeiture,  but  the  answering  of  which 
may  establish  or  tend  to  establish  that  he 
owes  a  debt  or  is  otherwise  subject  to  a 
civil  suit  at  the  instance  of  His  Majesty 
or  of  some  other  person  or  persons,  Be  it 
therefore  declared,  That  a  witrtess  cannot 
by  law  refuse  to  answer  a  question  rele- 
vant to  the  matter  in  issue,  the  answering 
of  which  has  no  tendency  to  accuse  him- 
self or  to  expose  him  to  penalty  or  for- 
feiture of  any  nature  whatsoever,  by  rea- 
son only  or  on  the  sole  ground  that  the 
answering  of  such  question  may  establish 
or  tend  to  establish  that  he  owes  a  debt 
or  is  otherwise  subject  to  a  civil  suit  either 
at  the  instance  of  His  Majesty  or  of  any 
other   person   or  persons." 

Compare     the     authorities   cited    in    W., 
§  2223. 


No.  460,  CIVIL    PARTY-OPPOXENT,  461 

that  in  the  same  cause  between  the  same  parties  in  the  examination  of 
the  same  facts  a  discovery  by  the  oath  of  the  parties  should  be  permitted 
on  one  side  of  Westminster  Hall  and  denied  on  the  other ;  or  that  the 
judges  of  one  and  the  same  court  should  be  bound  by  law  to  reject  such 
a  species  of  evidence  if  attempted  on  a  trial  at  bar,  but  when  sit- 
ting the  next  day  as  a  court  of  equity  should  be  obliged  to  hear  such 
examination  read  and  to  found  their  decrees  upon  it.  In  short,  within 
the  same  country,  governed  by  the  same  laws,  such  a  mode  of  inquiry 
should  be  universally  admitted  or  else  universally  rejected.  ...  A  sec- 
ond defect  [in  the  common-law  mode  of  trial]  is  of  a  nature  somewhat 
similar  to  the  first,  the  want  of  a  compulsive  power  for  the  production 
of  books  and  papers  belonging  to  the  parties.  ...  In  mercantile  trans- 
actions especially,  the  sight  of  the  party's  own  books  is  frequently  de- 
cisive; as  the  day-book  of  a  trader,  where  the  transaction  was  recently 
entered  as  really  understood  at  the  time,  though  subsequent  events  may 
tempt  him  to  give  it  a  different  color.  And  as  this  evidence  may  be 
finally  obtained  and  produced  on  a  trial  at  law  by  the  circuitous  course 
of  filing  a  bill  in  equity,  the  want  of  an  original  power  for  the  same 
purposes  in  the  Courts  of  law  is  liable  to  the  same  observations  as  were 
made  on  the  preceding  article." 


STOREY  v.  LORD  LENNOX    (1836). 

I  Keen  341,  350. 

Lord  Langdale,  M.  R.  :    "From  the  mode  of  proceeding  at  common 
law,  a  man  with  the  full  knowledge  of  facts  which  would  show  the  truth 
and  justice  of  the  case  may,  by  concealing  these  facts  within  his 
*  own  breast  and  merely  for  want  of  disclosure  or  evidence,  suc- 

ceed in  recovering  a  demand  which  he  knows  to  be  satisfied  or  in  resist- 
ing a  demand  which  he  knows  to  be  just.  This  conduct  is  by  courts 
of  equity  considered  to  be  against  conscience ;  and  they  accordingly  en- 
able the  party  in  danger  of  being  oppressed  by  it  to  obtain  from  his 
adversary  a  discovery  of  the  facts  within  his  knowledge  or  belief  by 
filing  a  proper  bill  for  the  purpose ;  and  by  the  general  rule  the  defend- 
ant to  a  proper  bill  for  discovery  is  bound  to  make  a  complete  disclosure 
of  everything  he  knows  or  believes  in  relation  to  the  matter  in  ques- 
tion.^ .  .  .  According  to  the  general  rule  which  has  always  prevailed  in 
this  court,  every  defendant  is  bound  to  discover  all  the  facts  within  his 
knowledge,  and  to  produce  all  documents  in  his  possession  which  are 
material  to  the  case  of  the  plaintiff."* 

3 — The  ensuing  sentence  is  quoted  from  chancery    rule    making    the    opponent    com- 

the  same  judge's  opinion   in   Flight  v.   Rob-  pcllable,    see   ante,    Xos.    ,^88,    396. 

inson,  8  Beav.   22.  23    (1844).  Compare     the     authorities    cited     in     W., 

4 — For   the   statutes    which   abolished   the  §$2218,    2219. 
privilege   at   common    law   and   adopted   the 


462 


PRIVILEGED   TOPICS. 


No.  461. 


KYNASTON  v.  EAST  INDIA  CO.  (1819). 
5  Swanst.  248. 

Bill  to  recover  tithes  payable  from  the  defendant's  premises.  De- 
nial that  the  premises  were  within  the  plaintiff's  parish.  Decree  for 
the  plaintiff,  and  reference  to  a  master  to  ascertain  the  value  of 
*"■'•  the  premises.  On  the  sixth  of  February  1819,  the  plaintiff  hav- 
ing moved,  before  the  Vice-Chancellor,  that  Joseph  Sills  and  William 
Smith  might  be  at  liberty  to  inspect  the  several  warehouses  and  prem- 
ises, mentioned  in  the  pleadings,  in  the  occupation  of  the  defendants, 
situate  in  Gravel  Lane,  Petticoat  Lane,  Harrow  Alley,  Cutler's  Street, 
and  Parker's  Gardens,  respectively,  preparatory  to  their  being  examined 
as  witnesses  on  the  part  of  the  plaintiff;  the  Vice-Chancellor  ordered 
a  reference  to  the  Master  to  inquire  and  state  to  the  Court,  whether  an 
inspection  of  the  several  warehouses  and  premises,  mentioned  in  the 
pleadings  to  be  in  the  occupation  of  the  defendants  in  Gravel  Lane,. 
Petticoat  Lane,  Harrow  Alley,  Cutler's  Street,  and  Parker's  Gardens, 
respectively,  by  the  said  Joseph  Sills  and  William  Smith,  preparatory 
to  their  being  examined  as  witnesses,  upon  interrogatories  carried  into 
the  Master's  office  by  the  plaintiff,  in  pursuance  of  the  decree,  was  neces- 
sary for  the  Master  to  form  his  conclusion  upon  the  matters  referred 
to  him.  From  this  order  the  defendants  appealed  to  the  Lord  Chan- 
cellor. Pending  the  appeal,  by  his  report,  dated  the  24th  day  of  March 
1819,  the  Master  certified  that  he  was  of  opinion,  that  an  inspection  of 
the  several  warehouses  and  premises,  mentioned  in  the  order  of  refer- 
ence, by  the  said  Joseph  Sills  and  Robert  Smith,  preparatory  to  their 
being  examined  as  witnesses,  upon  the  interrogatories  exhibited  by  the 
plaintiff  before  him  for  the  examination  of  witnesses,  in  respect  of  the 
matters  referred  to  him  by  the  decree,  was  necessary  for  him  to  form 
a  satisfactory  conclusion  upon  the  matters  so  referred  to  him.  On  the 
7th  of  April  18 19,  the  Vice-Chancellor  [Sir  John  Leach]  confirmed  the 
Master's  report,  and  ordered  that  the  defendants  should  permit  Joseph 
Sills  and  Robert  Smith  to  inspect  the  several  warehouses  and  premises 
in  the  occupation  of  the  defendants,  in  Gravel  Lane,  Petticoat  Lane, 
Harrow  Alley,  Cutler's  Street,  and  Parker's  Gardens,  respectively,  pre- 
paratory to  their  being  examined  as  witnesses  upon  interrogatories 
carried  into  the  Master's  office  by  the  plaintiff.  From  this  order  also  the 
defendants  appealed  to  the  Lord  Chancellor. 

The  Solicitor  General  [Sir  Samuel  Shepherd],  Sir  Arthur  Piggott 
and  Mr.  Wyatt,  in  support  of  the  appeal:  "The  order  for  inspection  is 
unprecedented,  unauthorized  by  practice  or  principle.  The  Court  has 
no  jurisdiction  to  compel  the  owners  of  houses  to  open  them  for  the 
admission  of  adverse  witnesses,  undertaking  to  furnish  evidence  against 
them  on  the  question  of  their  value.  Parties  may  be  themselves  ex- 
amined on  interrogatories ;  but  their  freehold  is  protected  from  the  entry 
of  strangers.     The  order   can  be  supported   only  on  the  principle  that 


No.  461.  CIVIL    PARTY-OPPONENT.  463 

the  Court  is  competent  to  compel  the  East  India  Company  to  open  their 
doors;  every  house  subject  to  the  same  claim  of  tithe  must  be  subject 
to  the  same  inspection.  If  the  parties  acted  on  such  an  order,  and  the 
East  India  Company  brought  an  action  for  trespass,  how  could  the 
defendants  protect  themselves  by  an  order  of  this  Court?  What  prece- 
dent is  there  of  such  a  defence?  The  instances  in  which  the  legis- 
lature has,  for  the  purpose  of  revenue,  compelled  inspection  of  houses, 
afford  no  proof  of  a  like  power  in  this  Court.  If  the  proprietor  of  a 
mine,  in  working  underground,  has  worked  into  the  mine  of  his  neigh- 
bour, and  taken  ore  not  belonging  to  him,  inspection  may  be  ordered ; 
but  the  Court  then  acts  at  the  instance  of  the  owner  of  the  mine  invaded 
and  of  the  ore  taken.  A  tithe-owner  is  undoubtedly  entitled  to  enter 
on  the  land  subject  to  tithe  for  the  purpose  of  seeing  the  tithe  set  out, 
and  carrying  it  away,  but  the  analogy  of  that  right  cannot  authorize 
the  plaintiff  in  deputing  strangers  to  enter  and  inspect  the  defendants' 
freehold.  On  the  principle  of  this  order  every  tithe-owner  may  file  a 
bill,  not  according  to  the  established  practice  for  discovery,  but  for  in- 
spection." 

Messrs.  Wetherell  and  Palmer,  for  the  plaintiff:  "The  principle  is 
that  wherever,  in  respect  of  the  property  of  one  individual,  a  right 
accrues  to  another  which  cannot  be  measured  without  inspection  of 
the  subject  of  property,  the  Court  is  competent  to  compel  the  proprietor 
to  permit  that  inspection,  as  indispensable  to  the  purposes  of  justice." 

L.  C.  Eldon  :  "Though  novel  in  circumstances,  this  case  is  not  novel 
in  principle.  The  purpose  of  inspection  is  to  inform  the  conscience  of 
the  Court,  and  witnesses  appointed  by  it  are  entitled  to  be  considered 
as  its  officers.  .  .  .  The  question  is,  whether  in  such  a  case  the  Court 
must  not  have  the  means  of  ascertaining  by  the  inspection  of  witnesses 
the  nature  of  the  premises,  in  order  to  ascertain  their  value ;  and  whether 
the  law  meant  to  leave  it  thus,  that  the  defendants  were  to  state  in 
their  answer  their  opinion,  and  to  send  their  own  surveyor  to  give  his 
opinion  of  the  value,  but  on  the  other  hand  the  plaintiff  was  to  be  in 
such  circumstances  that  he  could  examine  no  witnesses  who  knew  with 
precision  the  value  of  the  premises.  ...  It  is  admitted  that  where  a 
man  has  a  right  to  receive  a  certain  sum  in  the  pound  on  the  value  of 
trees,  the  Court  has  ordered  inspection  of  the  trees;  so  in  the  case  of 
a  commission  on  diamonds,  inspection  would  be  ordered  of  the  diamonds. 
I  remember  a  case  where,  on  the  suggestion  that  a  machine  used  by 
the  defendant  was  an  infringement  of  a  patent,  the  Court  ordered  the 
defendant  to  allow  an  entry  into  his  premises  for  the  purpose  of  ascer- 
taining by  inspection  whether  the  machine  was  an  infringement.  .  .  . 
If  without  this  proceeding  the  Court  must  miscarry,  and  cannot  attain 
the  justice  of  the  case  without  inspection,  my  opinion  is  that,  on  prin- 
ciple, it  has  authority  to  order  inspection,  taking  care  to  impose  as  little 
inconvenience  as  possible  on  those  on  whom  orders  is  made."" 

5 — Compare  the   authorities  cited   in  W.,  §  2221,  and  No.   397,  ante. 


464 


PRIVILEGED   TOPICS. 


No.  462. 


UNION  PACIFIC  R.  CO.  v.  BOTSFORD    (1890). 
141  U.  S.  250,  II  Sup.  1000. 

The  original  action  was  by  Clara  L.  Botsford  against  the  Union 
Pacific  Railway  Company,  for  negligence  in  the  construction  and  care 
of  an  upper  berth  in  a  sleeping  car  in  which  she  was  a  passenger, 
*  '^  by  reason  of  which  the  berth  fell  upon  her  head,  bruising  and 
wounding  her,  rupturing  the  membranes  of  the  brain  and  spinal  cord, 
and  causing  a  concussion  of  the  same,  resulting  in  great  suffering  and 
pain  to  her  in  body  and  mind,  and  in  permanent  and  increasing  injuries. 
Answer,  a  general  denial.  Three  days  before  the  trial  (as  appeared 
by  the  defendant's  bill  of  exceptions)  "the  defendant  moved  the  Court 
-for  an  order  against  the  plaintiff,  requiring  her  to  submit  to  a  surgical 
examination,  in  the  presence  of  her  own  surgeon  and  attorneys,  if  she 
desired  their  presence;  it  being  proposed  by  the  defendant  that  such 
examination  should  be  made  in  manner  not  to  expose  the  person  of  the 
plaintiff  in  any  indelicate  manner;  the  defendant  at  the  time  informing 
the  Court  that  such  examination  was  necessary  to  enable  a  correct  diag- 
nosis of  the  case,  and  that  without  such  examination  the  defendant 
would  be  without  any  witnesses  as  to  her  condition.  The  Court  over- 
ruled said  motion,  and  refused  to  make  said  order,  upon  the  sole  ground 
that  this  Court  had  no  legal  right  or  power  to  make  and  enforce  such 
order."  To  this  ruling  and  action  of  the  Court  the  defendant  duly  ex- 
cepted, and  after  a  trial,  at  which  the  plaintiff'  and  other  witnesses  tes- 
tified in  her  behalf,  and  which  resulted  in  a  verdict  and  judgment  for 
her  in  the  sum  of  $10,000,  sued  out  this  writ  of  error. 

Gray,  J. : ,  "No  right  is  held  more  sacred,  or  is  more  carefully 
guarded,  by  the  common  law,  than  the  right  of  every  individual  to  the 
possession  and  control  of  his  own  person,  free  from  all  restraint  or 
interference  of  others,  unless  by  clear  and  unquestionable  authority  of 
law.  .  .  .  The  inviolability  of  the  person  is  as  much  invaded  by  a  com- 
pulsory stripping  and  exposure  as  by  a  blow.  To  compel  any  one,  and 
especially  a  woman,  to  lay  bare  the  body,  or  to  submit  it  to  the  touch 
of  a  stranger,  without  lawful  authority,  is  an  indignity,  an  assault  and 
a  trespass ;  and  no  order  or  process  commanding  such  an  exposure  or 
submission  was  ever  known  to  the  common  law  in  the  administration 
of  justice  between  individuals,  except  in  a  very  small  number  of  cases, 
based  upon  special  reasons  and  upon  ancient  practice,  coming  down 
from  ruder  ages,  now  mostly  obsolete  in  England,  and  never,  so  far  as 
we  are  aware,  introduced  into  this  country.  In  former  times,  the  Eng- 
lish courts  of  common  law  might,  if  they  saw  fit,  try  by  inspection  or 
examination,  without  the  aid  of  a  jury,  the  question  of  the  infancy,  or 
of  the  identity  of  a  party;  or,  on  an  appeal  of  maihem,  the  issue  of 
maihem  or  no  maihem ;  and,  in  an  action  of  tresspass  for  maihem,  or 
for  an  atrocious  battery,  might,  after  a  verdict  for  the  plaintiff,  and 
on  his  motion,  and  upon  their  own  inspection  of  the  wound,  super  visum 


No.  463.  CIVIL    PARTY-OPPONENT.  465 

vulneris,  increase  the  damages  at  their  discretion.  In  each  of  those 
exceptional  cases,  as  Blackstone  tells  us,  'it  is  not  thought  necessary 
to  summon  a  jury  to  decide  it,'  because  'the  fact,  from  its  nature,  must 
be  evident  to  the  court,  either  from  ocular  demonstration  or  other  irre- 
fragable proof,'  and,  therefore,  'the  law  departs  from  its  usual  resort, 
the  verdict  of  twelve  men,  and  relies  on  the  judgment  of  the  court 
alone.'  The  inspection  was  not  had  for  the  purpose  of  submitting  the 
result  to  the  jury,  but  the  question  was  thought  too  easy  of  decision 
to  need  submission  to  a  jury  at  all.  3  Bl.  Com.  331-333.  The  au- 
thority of  courts  of  divorce,  in  determining  a  question  of  impotence  as 
affecting  the  validity  of  a  marriage,  to  order  an  inspection  by  surgeons 
of  the  person  of  either  party,  rests  upon  the  interest  which  the  public, 
as  well  as  the  parties,  have  in  the  question  of  upholding  or  dissolving 
the  marriage  state,  and  upon  the  necessity  of  such  iividence  to  enable 
the  court  to  exercise  its  jurisdiction;  and  is  derived  from  the  civil  and 
canon  law,  as  administered  in  spiritual  and  ecclesiastical  courts,  not 
proceeding  in  any  respect  according  to  the  course  of  the  common  law. 
The  writ  de  ventre  inspicicndo,  to  ascertain  whether  a  woman  convicted 
of  a  capital  crime  was  quick  with  child,  was  allowed  by  the  common 
law,  in  order  to  guard  against  the  taking  of  the  life  of  an  unborn 
child  for  the  crime  of  the  mother.  The  only  purpose,  we  believe,  for 
which  the  like  writ  was  allowed  by  the  common  law,  in  a  matter  of 
civil  right,  was  to  protect  the  rightful  succession  to  the  property  of  a 
deceased  person  against  fraudulent  claims  of  bastards,  when  a  widow 
was  suspected  to  feign  herself  with  child  in  order  to  produce  a  sup- 
posititious heir  to  the  estate,  in  which  case  the  heir  or  devisee  might  have 
this  writ  to  examine  whether  she  was  with  child  or  not,  and,  if  she 
was,  to  keep  her  under  proper  restraint  till  delivered,  i  Bl.  Com.  456 ; 
Bac.  Ab.  Bastard,  A.  .  .  .  But  the  learning  and  research  of  the  coun- 
sel for  the  plaintiff  in  error  have  failed  to  produce  an  instance  of  its 
ever  having  been  considered,  in  any  part  of  the  United  States,  as  suited 
to  the  habits  and  condition  of  the  people. 

"So  far  as  the  books  within  our  reach  show,  no  order  to  inspect 
the  body  of  a  party  in  a  personal  action  appears  to  have  been  made,  or 
even  moved  for,  in  any  of  the  English  courts  of  common  law,  at  any 
period  of  their  history." 


WANEK  V.   WINONA    (1899). 

75  Minn.  98,  80  N.  W.  851. 

Mitchell,  J. :     "This  action  was  brought  to  recover  damages  for 
personal  injuries  caused  by  the  alleged  negligence  of  the  city  in  allow- 
ing a  public  sidewalk  to  become  and  remain  out  of  repair,  and 
in  an  unsafe  condition  for  public  travel.    The  only  question  which 
we  find   it  necessary   to   consider   is   whether   the  trial   Court   erred   in 
denying  the   application   of  the   defendant   to   require   the   plaintiff   to 


466  PRIVILEGED   TOPICS.  No.  463, 

submit  himself  to  a  physical  examination  by  two  or  more  competent 
and  disinterested  physicians,  to  be  named  by  the  court  in  order  to  ascer- 
tain the  nature  and  extent  of  his  injuries.  The  alleged  injuries  were 
sustained  October  19,  1898.  The  plaintiff's  notice  of  his  claim  for  dam- 
ages was  served  on  the  city  November  14,  1898.  This  action  was 
commenced  December  9  of  the  same  year,  and  defendant's  application 
for  a  physical  examination  was  made  May  i,  1899,  the  first  day  of  the 
term  at  which  the  action  was  tried.  The  complaint  alleged  that  the 
injuries  would  be  permanent,  and  the  existence  or  nonexistence  of  at 
least  some  of  the  injuries  could  only  be  ascertained  by  a  physical  ex- 
amination of  plaintiff's  person.  The  trial  court  denied  the  applica- 
tion upon  the  grounds,  as  shown  by  his  memorandum:  First,  that  he 
had  no  power  in  any  case  to  order  a  party  to  submit  to  a  physical 
examination  of  his  person;  and,  second,  even  if  he  had  the  power,  he 
would,  in  the  exercise  of  his  discretion,  have  refused,  under  the  circum- 
stances of  the  case,  to  grant  defendant's  application. 

"We  are  very  clearly  of  the  opinion  that  the  Court  has  the  power, 
in  a  case  of  this  kind,  to  order  the  plaintiff  to  submit  to  a  physical 
examination  of  his  person,  .  .  .  and  to  require  the  plaintiff  to  submit 
to  it  under  the  penalty  of  having  his  action  dismissed  in  case  he  refuses 
to  do  so.  We  are  aware  that  there  are  some  eminent  authorities  to  the 
contrary,  but,  with  all  due  deference  to  them,  we  cannot  avoid  think- 
ing that  they  base  their  conclusion  upon  a  fallacious  and  somewhat 
sentimental  line  of  argument  as  to  the  inviolability  and  sacredness  of 
a  man's  own  person,  and  his  right  to  its  possession  and  control  free 
from  all  restraint  or  interference  of  others.  This,  rightly  understood, 
is  all  true,  but  his  right  to  the  possession  and  control  of  his  person 
is  no  more  sacred  than  the  cause  of  justice.  When  a  person  appeals 
to  the  State  for  justice,  tendering  an  issue  as  to  his  own  physical  con- 
dition, he  impliedly  consents  in  advance  to  the  doing  justice  to  the  other 
party,  and  to  make  any  disclosure  which  is  necessary  to  be  made  in 
order  that  justice  may  be  done.  No  one  claims  that  he  can  be  com- 
pelled to  submit  to  such  an  examination.  But  he  must  either  submit 
to  it,  or  have  his  action  dismissed.  Any  other  rule  in  these  personal 
injury  cases  would  often  result  in  an  entire  denial  of  justice  to  the 
defendant,  and  leave  him  wholly  at  the  mercy  of  the  plaintiff's  witnesses.. 
In  very  many  cases  the  actual  nature  and  extent  of  the  injuries  can 
only  be  ascertained  by  a  physical  examination  of  the  person  of  the  in- 
jured party.  Such  actions  were  formerly  very  infrequent,  but  of  late 
years  they  constitute  one  of  the  largest  branches  of  legal  industry,  and 
are  not  infrequently  attempted  to  be  sustained  by  malingering  on  the 
part  of  the  plaintiff,  false  testimony,  or  the  very  unreliable  speculations 
of  so-called  'medical  experts.'  To  allow  the  plaintiff  in  such  cases,  if 
he  sees  fit  to  display  his  injuries  to  the  jury,  to  call  in  as  many  friendly 
physicians  as  he  pleases,  and  have  them  examine  his  person,  and  then 
produce  them  as  expert  witnesses  on  the  trial,  but  at  the  same  time 
deny  to  the  defendant  the  right  in  any  case  to  have  a  physical  examina- 


No.  465.  CIVIL    PARTY-OPPONENT.  467 

tion  of  plaintiff's  person,  and  leave  him  wholly  at  the  mercy  of  such 
witnesses  as  the  plaintiff  sees  fit  to  call,  constitutes  a  denial  of  justice 
too  gross,  in  our  judgment,  to  be  tolerated  for  one  moment."^ 


J.     Privilege  of  Husband  and   IVife.^ 

Sir  Edward  Coke,  Commentary  upon  Littleton,  6  b  (1629):  "He 
that  loseth  liberam  legem  becometh  infamous  and  can  be  no  witness ; 
or  if  the  witness  be  an  infidell,  or  of  non-sane  memory,  or  not 
of  discretion,  or  a  partie  interested,  or  the  like.  But  oftentimes 
a  man  may  be  challenged  to  be  of  a  jury  that  cannot  be  challenged  to 
be  a  witnesse,  and  therefore,  though  the  witnesse  be  of  the  neerest 
alliance  or  kindred,  or  of  counsell,  or  tenant,  or  servant  to  either  partie, 
or  any  other  exception  that  maketh  him  not  infamous,  or  to  want  un- 
derstanding or  discretion,  or  a  partie  in  interest,  though  it  be  proved 
true,  shall  not  exclude  the  witnesse  to  be  sworne.  .  .  .  Note,  it  hath 
been  resolved  by  the  justices  that  a  wife  cannot  be  produced  either 
against  or  for  her  husband,  qua  sunt  duo;  anima:  in  came  una;  and  it 
might  be  a  cause  of  implacable  discord  and  dissention  between  the  hus- 
band and  wife,  and  a  meane  of  great  inconvenience ;  but  in  some  cases 
women  are  by  law  wholly  excluded  to  bear  testimony,  as  to  prove  a 
man  to  be  a  villain." 


KNOWLES  v.  PEOPLE    (1867). 

75  Mich.  408,  41^. 

Campbell,  J.:  "Defendant  was  convicted  in  the  circuit  court  for 
the  county  of  Lenawee  of  a  charge  of  larceny,  in  stealing  cattle.  .  .  . 
Defendant  having  introduced  testimony  tending  to  prove  that 
*  he  was  at  home  at  the  time  when  the  larceny  was  said  to  have 
been  committed,  and  there  being  evidence  tending  to  shovv'  that  his 
wife  was  home  at  the  same  time,  the  Court  refused  to  instruct  the 
jury  that  they  had  no  right  to  consider  the  omission  of  defendant  to 
call  her  as  a  witness,  nor  allow  the  omission  to  prejudice  him  in  their 
deliberation,  and,  on  the  contrary,  instructed  them  that  such  neglect 
might  be  taken  into  consideration  against  him.  There  is  no  doubt  that 
a  jury  may  regard  with  suspicion  a  failure  of  a  party  to  produce  testi- 
mony which  is  in  his  power,  and  which  would  throw  light  upon  mat- 
ters left  without  other  proper  evidence.  But  this  rule  has  never  been 
applied  to  those  cases  where  the  law,  on  grounds  of  public  policy,  has 
established  privileges  against  being  compelled  to  produce  it.     It  is  well 

T — Compare   the    authorities  cited   in    W.,        carh    other's    fnror.    see    orfc.    Nos.     74-76. 
S  2220.  For    the    privilege    as    to    ittnriliil    cootmuni- 

2 — For    the    (iiaqualification    to    testify    in        cations,    see   post,    Nos.    509,    510. 


468  PRIVILEGED   TOPICS.  No.  465. 

settled  that  where  a  man  avails  himself  of  his  privilege,  to  decline 
ansv^rering  questions,  no  unfavorable  inference  can  be  allowed  to  be 
drawn  from  his  silence,  and  in  Carne  v.  Litchfield,  2  Mich.  340,  the 
refusal  of  the  circuit  court  to  prevent  counsel  from  commenting  on  such 
a  claim  of  privilege,  was  held  to  be  sufficient  ground  for  reversing  a 
judgment. 

"Our  statute,  in  changing  the  common  law  rule  concerning  the  tes- 
timonial incapacities  of  husband  and  wife,  has  not  made  them  com- 
petent witnesses  for  or  against  each  other  without  restriction,  but  has 
prohibited  either  from  testifying  without  the  consent  of  the  other,  and 
from  divulging  mutual  confidences  without  mutual  consent.  It  is  very 
manifest  that  the  rule  which  prevents  a  wife  from  being  compelled  to 
testify  against  her  husband  is  based  on  principles  which  are  deemed 
important  to  preserve  the  marriage  relation  as  one  of  full  confidence 
and  affection,  and  that  this  is  regarded  as  more  important  to  the  public 
welfare  than  that  the  exigencies  of  lawsuits  should  authorize  domestic 
peace  to  be  disregarded,  for  the  sake  of  ferreting  out  some  fact  not 
within  the  knowledge  of  strangers.  If  the  omission  to  call  a  wife  upon 
the  stand  is  to  be  treated  as  warranting  the  conclusion  that  her  testi- 
mony would  be  adverse,  then  the  privilege  is  entirely  destroyed,  and 
she  will  have  to  be  called  at  all  events.  The  power  of  declining  to  call 
such  a  witness  is  not  reserved  to  protect  from  awkward  disclosures, 
but  out  of  respect  to  the  better  feelings  of  humanity,  which  impel  all 
right-minded  persons  to  shrink  from  any  needless  exposure  to  the  ordeal 
of  a  public  examination,  c  f  persons  who  would  be  unnatural  and  un- 
worthy if  they  did  not  feel  a  very  strong  bias  in  favor  of  their  consorts. 
The  law,  in  permitting  husbands  and  wives  to  testify  on  behalf  of  each 
other,  can  not  have  contemplated  that  any  moral  coercion  should  enable 
others  to  force  them  into  the  witness  box.  Lord  Mansfield,  in  Blatch 
V.  Archer,  Cowp.  63,  admitting  the  general  rule  that  an  omission  to 
produce  accessible  evidence  is  suspicious,  declared  that  it  would  have 
been  very  improper,  without  necessity,  to  call  a  son  in  a  case  where 
his  father  was  interested,  and  held  that  the  principle  did  not  apply  to 
such  a  state  of  things.  Yet  a  son  was  always  competent  for  any  party. 
But  the  relation  of  husband  and  wife  has  always  been  held  as  one 
which  should  not  be  exposed  to  any  needless  influences  which  might 
interfere  with  the  most  unreserved  confidence  and  security." 


Commissioners  of  Common  Law  Procedure,  Second  Report,  i^ 
C1853):  "A  more  difficult  question  [than  that  of  admitting  them  in 
each  other's  favor]  arises  when  we  proceed  to  consider  whether 
*""  it  should  be  made  competent  to  an  adverse  party  to  call  a  hus- 
band or  wife  as  witness  against  one  another.  The  case  would  no  doubt 
be  of  rare  occurrence ;  when  it  did,  it  would  in  the  greater  number  of 
instances  be  where  husband  and  wife  have  separated  and  are  on  bad 
terms  v.-ith  one  another.     In  such  cases  the  mischief  apprehended  from 


No.  467.  HUSBAND   AND    WIFE.  469 

the  interruption  of  domestic  happiness  becomes  out  of  the  question. 
But  suppose  the  husband  and  wife  living  together  on  the  usual  terms; 
here  the  identity  of  interest  between  them  will  deter  an  adverse  party 
from  calling  one  against  the  other,  except  under  very  peculiar  and 
pressing  circumstances  and  when  the  fact  to  be  proved  is  certain  in 
its  character  and  clearly  within  the  Itnowledge  of  the  witness.  .  .  .  But 
if  there  be  such  a  fact  in  the  knowledge  of  one  of  two  married  persons, 
so  material  to  the  cause  of  the  adverse  party  as  to  make  it  worth  his 
while  to  run  the  risk  of  calling  so  hostile  a  witness,  it  becomes  matter 
of  very  serious  consideration  whether  justice  should  be  allowed  to  be 
defeated  by  the  exclusion  of  such  evidence.  It  is  clear  that  nothing 
but  an  amount  of  mischief  outbalancing  the  evil  of  defeated  justice 
can  v/arrant  the  exclusion  of  testimony  necessary  to  justice.  What, 
then,  is  the  mischief  here  to  be  apprehended  ?  The  possibility  of  resent- 
ment of  a  husband  against  a  wife  for  testifying  to  facts  prejudicial  to 
his  interest.  But  it  is  obvious  that  such  resentment  could  only  be  felt 
by  persons  prepared  to  commit  perjury  themselves  and  to  expect  it  to  be 
committed  in  their  behalf.  Such  instances,  we  believe,  would  be  very 
rare ;  and  we  do  not  think  that  a  regard  to  the  feelings  of  individuals 
of  this  class,  or  the  amount  of  mischief  likely  to  arise  from  a  disregard 
of  them,  is  sufficient  to  compensate  for  the  loss  which  in  many  cases 
may  result  from  the  exclusion  of  the  evidence.  .  .  .  The  conclusion  to 
which  the  foregoing  observations  leads  us  is  that  husband  and  wife 
should  be  competent  and  compellable  to  give  evidence  for  and  against 
one  another  on  matters  of  fact  as  to  which  either  could  now  be  exam- 
ined as  a  party  in  the  cause. "^ 


REX  V.  CLIVIGER    (1788). 
2  T.  R.  26j. 
Two   justices   removed    by   an   order,   James    Whitehead,   otherwise 
Shepherd,   and   Margery,   his   wife,   from   the  township  of  Anlezark  to 
Cliviger,  both  of  the  county  of  Lancaster;  and,  on  appeal  to  the 
sessions,  that  order  was  confirmed,  subject  to  the  opinion  of  the 
Court  on  the  following  case.     As  to  so  much  of  the  order  as  respected 
the  settlement  of  Margery,  therein  named  to  be  the  wife  of  James  White- 
head, the  respondents  proved  the  marriage  of  the  paupers,  James  and 
Margery,  on  the  i6th  September  1786,  and  then  closed  their  case.    The 
appellants  insisted,  that  James  Whitehead,  the  pauper,  had  a  former  wife, 
Ellen.    living   at   the   time   of   his   marriage   with    Margery,    and    called 
James  Whitehead  to  prove  it ;  who  swore  that  he  never  was  married 
to  the  said  Ellen.     The  appellants  then  offered  to  call  the  said  Ellen, 
stating  her  to  be  the  lawful  wife  of  said  James  Whitehead,  to  contra- 
dict what  he,  her  supposed  husband,  had  sworn ;  and  to  swear  that  she 

3 — Fot   the  statutes   which   have   modified       pcndix.      For   the   history   of   the    privilege, 
or    abolished    the    privilege,    see    post,    Ap-       see  W.,   §  2227. 


4:70  PRIVILEGED   TOPICS.  No.  467. 

was  his  lawful  wife;  but  the  sessions,  under  the  circumstances,  refused 
to  receive  her  evidence.  The  appellants  then  went  into  evidence  of 
cohabitation  between  the  said  Ellen  and  James  for  a  period  of  three 
or  four  years ;  of  declarations  and  acts  of  James  acknowledging  the  said 
Ellen  to  be  his  wife,  and  amongst  others,  an  indenture  of  apprentice- 
ship, dated  24th  August  1785,  was  proved,  by  which  the  said  James  and 
the  said  Ellen,  therein  described  to  be  his  wife,  bound  out  apprentice 
one  Thomas  Williams,  the  son  of  the  said  Ellen,  by  one  Joseph  Williams, 
formerly  her  husband,  but  then  deceased.  The  question  referred  to  the 
Court  is,  Whether  the  said  Ellen  was  a  competent  witness  under  these 
circumstances  or  not? 

S.  Heyzvood  and  Topping,  in  support  of  the  order  of  sessions :  "The 
real  question  before  the  Court  is,  Whether  a  wife  is  a  competent  wit- 
ness, even  in  the  case  of  third  persons,  to  prove  her  husband  guilty  of 
bigamy?  Besides  the  objection  of  her  being  interested  in  the  question 
which  was  put  to  her,  inasmuch  as  she  was  called  to  prove,  that  a  person 
whom  she  called  her  husband  was  liable  to  her  debts,  and  for  her  main- 
tenance; there  is  another  objection  to  her  testimony  arising  from  the 
policy  of  the  law,  which  will  not  permit  husband  and  wife  to  give  evi- 
dence tending  to  the  crimination  of  each  other.  Here  the  evidence  of 
the  wife  went  to  charge  her  husband  with  bigamy.  .  .  .  The  argument 
which  may  be  urged  on  the  other  side,  that  the  husband  could  not 
be  affected  by  this  evidence,  inasmuch  as  it  could  not  be  made  use  of 
on  any  other  occasion,  cannot  have  any  weight;  for  if  it  tends  in  any 
degree  to  prejudice  him,  that  is  sufficient.  It  would  certainly  have 
raised  impressions  against  him,  and  indeed  it  would  have  been  the  duty 
of  the  justices  to  have  committed  him  after  having  heard  it.  They  may 
possibly  be  some  cases  where  a  wife  may  give  evidence  on  behalf  of 
third  persons,  which  may  obliquely  affect  her  husband,  but  certainly 
none  where  it  tends  to  impute  any  crime  on  him." 

Bcarcroft,  Cockcll,  Serj.  and  Johnson,  contra:  "In  the  case  of  an 
indictment  for  bigamy,  the  first  wife's  evidence  is  not  admissible,  be- 
cause it  goes  to  charge  her  husband  directly.  But  here  nothing  that  the 
woman  could  say  could  affect  her  husband ;  no  prosecution  could  be 
grounded  on  her  testimony;  neither  was  there  any  benefit  to  herself." 

Ash  HURST,  J.:  "There  is  no  doubt  but  that  husband  and  wife  may 
prove  their  own  marriage  on  a  question  of  settlement.  But  this  case 
rests  on  particular  ci"rcumstances.  A  marriage  in  fact  has  been  proved 
with  one  woman ;  the  question  was.  Whether  she  was  the  pauper's  law- 
ful wife?  Then  another  woman  was  called  to  prove  that  she  had  been 
before  married  to  him,  and  was  in  truth  his  lawful  wife.  That  creates 
the  doubt,  Whether  it  was  competent  to  the  wife  to  prove  that  her 
husband  had  been  twice  married?  Under  these  circumstances,  I  am  of 
opinion  that  she  was  not  a  competent  witness  to  that  purpose.  .  .  . 
I  lay  all  consideration  of  interest  out  of  the  case.  .  .  .  But  the  ground 
of  her  incompetency  arises  from  a  principle  of  public  policy,  which 
does  not  permit  husband  and  wife  to  give  evidence  that  may  even  tend 


No.  468.  HUSBAND   AND    WIFE.  471 

to  criminate  each  other.  The  objection  is  not  confined  merely  to  cases 
where  the  husband  or  wife  are  directly  accused  of  any  crime,  but  even 
in  collateral  cases,  if  their  evidence  tends  that  way,  it  shall  not  be 
admitted.  Now  here  the  wife  was  called  to  contradict  what  her  hus- 
band had  before  sworn,  and  to  prove  him  guilty  of  perjury  as  well 
as  bigamy;  so  that  the  tendency  of  her  evidence  was  to  charge  him 
with  two  crimes.  However  though  what  she  might  then  swear  could 
not  be  given  in  evidence  on  a  subsequent  trial  for  bigamy,  yet  her 
evidence  might  lead  to  a  charge  for  that  crime  and  cause  the  husband 
to  be  apprehended." 


REX  V.  ALL  SAINTS    (1817). 
6  M.  &  S.  ip3,  ipp. 

Upon  appeal  the  sessions  confirmed  an  order  for  the  removal  of 
Esther  Newman,  otherwise  Esther  Willis,  from  the  parish  of  Chelten- 
ham, in  the  county  of  Gloucester,  to  the  parish  of  All  Saints, 
in  the  city  of  Worcester,  subject  to  the  opinion  of  this  Court 
en  the  following  case :  The  appellants  having  produced  the  pauper, 
the  counsel  for  the  respondents  began  their  case  by  calling  a  witness, 
named  Ann  Willis,  for  the  purpose  of  proving  that  she  had  been  mar- 
ried in  Ireland  to  one  George  Willis.  The  counsel  for  the  appellants 
objected  to  the  competency  of  this  witness,  declaring  themselves  pre- 
pared with  evidence  of  the  subsequent  marriage  of  the  same  George 
Willis  to  Esther  the  pauper ;  but  the  Court  determined  to  admit  the 
witness. 

Scarlett  and  Campbell,  in  support  of  the  order  of  sessions,  argued 
that  Ann  Willis  was  a  competent  witness  to  prove  her  marriage  with 
George  Willis.  "In  order  to  maintain  this  position  it  was  not  necessary 
to  dispute  the  rule  that  husband  and  wife  cannot  be  witnesses  for 
each  other,  nor  against  each  other,  provided  the  rule  were  limited  to 
cases  where  the  interest  of  husband  and  wife  is  the  matter  in  contro- 
versy, as  where  either  of  them  is  partly  to  the  record.  But  suppose  an 
issue  between  A.  and  B.,  and  A.  calls  a  witness,  who  proves  certain 
facts,  and  also  calls  the  wife  of  that  witness,  with  a  view  of  confirm- 
ing his  evidence;  if  the  wife,  instead  of  confirming,  should  contradict 
her  husband,  this  testimony,  according  to  the  argument  below  at  the 
sessions,  must  be  rejected,  otherwise  it  may  tend  to  shew  her  husband 
guilty  of  perjury.  But  would  it  not  be  a  strange  anomaly  in  the  law, 
if  the  competency  of  a  feme  covert  to  be  a  witness  should  depend  upon 
whether  her  evidence  would  or  would  not  agree  with  the  evidence  of 
her  husband,  his  interest  not  being  in  litigation?  It  seems,  indeed,  as 
if  some  such  doctrine  had  led  to  the  decision  of  Rex  v.  Cliviger." 

Jcrvis,  Taunton,  and  Tzciss,  contra,  argued  that  Rex  v.  Cliviger 
was  decisive  of  this  question;  "for  although  in  that  case  the  husband 
was  one  of  the  parties  included  in  the  order  of  removal,  and  had  been 


472  PRIVILEGED   TOPICS.  No.  466. 

called  as  a  witness,  and  denied  his  former  marriage,  in  which  respect 
it  differs  from  the  present  case,  yet  having  been  decided  upon  the 
principle  that  the  law  does  not  permit  husband  and  wife  to  give  evi- 
dence that  may  even  tend  to  criminate  each  other,  that  decision  entirely 
disposes  of  the   present  case." 

Lord  Ellenborough^  C.  J. :  "With  the  best  attention  I  have  been 
able  to  give  this  case,  I  cannot  discover  any  incompetence  of  the 
first  wife  to  give  evidence  touching  the  fact  of  her  marriage.  .  .  .  She 
affirmed  that  he  was  her  husband.  How  does  this  criminate  him  ? 
Does  it  contradict  anything  which  he  had  sworn  to  before,  so  as  to 
involve  him  in  the  crime  of  perjury.  Not  at  all.  Does  it  even  relate 
to  a  matter  on  which  he  had  given  previous  evidence?  By  no  means. 
.  .  .  The  objection  rests  only  on  the  language  of  the  King  v.  Cliviger, 
that  it  may  tend  to  criminate  him,  for  it  is  not  an  immediate  tendency 
inasmuch  as  what  she  stated  could  not  be  used  in  evidence  against 
him.  .  .  .  If  we  were  to  determine,  without  regard  to  the  form  of  pro- 
ceeding, whether  the  husband  was  implicated  in  it  or  not,  that  the 
wife  is  an  incompetent  witness  as  to  every  fact  which  may  possibly 
have  a  tendency  to  criminate  her  husband,  or  which  connected  with 
other  facts  may  perhaps  go  to  form  a  link  in  a  complicated  chain  of 
evidence  against  him,  such  a  decision,  as  I  think,  would  go  beyond  all 
bounds." 

Bayley,  J.:  "There  was  no  objection  arising  out  of  the  policy  of 
the  law  because  by  possibility  her  evidence  might  be  the  means  of 
furnishing  information  and  might  lead  to  inquiry  and  perhaps  to  the 
obtaining  of  evidence  against  her  husband.  It  is  no  objection  to  the 
information  that  it  has  been  furnished  by  the  wife.  ...  I  am  not  sure 
that  the  import  of  the  expression  'tendency  to  criminate'  was  very 
accurately  defined  in  that  case  [of  R.  v.  Cliviger].  It  was  probably  not 
understood  as  meaning  that  the  wife's  evidence  could  be  used  against 
her  husband,  for  we  know  that  this  could  not  be  so.  .  .  .  Nothing  which 
the  wife  proved  on  this  occasion  could  be  the  direct  means  of  founding 
a  prosecution  against  her  husband,  although  it  might  afford  the  means 
of  procuring  evidence  against  him ;  but  such  a  collateral  consequence 
is  not  a  sufficient  objection."^ 


CALDWELL  v.  STUART  (1832). 
2  Bail.  514. 
Action  of  trover  for  the  recovery  of  certain  slaves,  which  the  plain- 
tiff claimed  by  parol  gift  from  the  defendant's  testator,  who  was   her 
step-father.     The  only  witness  to  prove  the  gift  was  Mrs.  Stuart, 
the  widow  of   the  testator,  and  she  was  objected  to,  as  incom- 
petent by  reason  of  her  relation  to  the  testator.     The  presiding  judge 

1 — Roane,  J.,  in  Baring  v.  Reeder,  i  tions,  where  the  husband  is  no  party,  the 
Hem.  &  M.  154,  168  (1806):  "I  take  the  wife  may  be  called  as  a  witness  even  to 
rule  on  this  subject  to  be  that,  in  civil  ac-        facts   which   if  proved  in  another  action  to 


NO'.  470.  HUSBAND    AND    WIFE.  4.73 

overruled  the  objection;  and  the  plaintiff  obtained  a  verdict,  which  the 
defendant  now  moved  to  set  aside,  on  the  ground  that  the  testimony  of 
the  widow  ought  to  have  been  excluded. 

Johnson,  J.:  "We  are  very  clearly  of  opinion  that  Mrs.  Stuart  was 
properly  admitted  as  a  witness.  The  rule,  which  excludes  the  wife  from 
giving  evidence  for,  or  against  the  husband,  is  founded,  in  some  degree, 
upon  the  legal  identity  of  the  husband  and  wife.  .  .  .  Domestic  quiet 
and  harmony  of  families  have  suggested  the  propriety  of  excluding  it 
where  it  would  be  volunteered.  .  .  .  Neither  the  rule,  nor  any  of  the  rea- 
sons upon  which  it  proceeds,  have  any  the  most  remote  application  here. 
The  husband  is  no  party ;  he  has  ceased  to  have  any  interest  in  tem- 
poral concerns.  The  defendant,  the  executor,  represents  the  interests 
of  the  creditors,  legatees,  or  distributees,  as  the  case  may  be,  and  not  the 
husband's.  There  is  no  danger  of  matrimonial  discord;  nor  is  there 
any  violation  of  confidence."- 


SOULE'S  CASE  (1828). 
5  Me.  4oy,  408. 

The  husband  was  indicted    for  an  aggravated  assault  and  battery 

upon  the  wife;  and  upon  the  trial,  before  Preble,  J.  at  the  last  term  in 

this  county,  he  admitted  the  wife  as  a  competent  witness  for  the 

*  State;  but  saved  the  point  for  the  consideration  of  all  the  Judges. 

Mfxlen,  C.  J. :  "In  this  case  the  only  question  is  whether  the  wife  of 
the  defendant  was  properly  admitted  as  a  witness  against  him  on  the 
trial,  to  prove  the  assault  and  battery  upon  her,  charged  in  the  indict- 
ment. It  is  well  known  that,  as  a  general  principle,  husband  and  wife 
are  not  legal  witnesses  against  each  other.  .  .  .  From  the  general  rule 
some  exceptions  have  been  established,  founded  on  the  necessity  of  the 
case.  For  instance,  if  a  wife  could  not  be  admitted  to  testify  against 
the  husband  as  to  threatened  or  executed  violence  and  abuse  upon  her 
person,  he  could  play  the  tyrant  and  brute  at  his  pleasure,  and  with 
perfect  security  beat,  wound,  and  torture  her  at  times  and  in  places 
when  and  where  no  witnesses  could  be  present  nor  assistance  be  ob- 
tained. Reasons  of  policy  do  not  certainly  extend  so  far  as  in  such 
cases  to  disqualify  her  from  being  a  witness  against  him.  ...  So  far 
as  the  general  incompetency  of  the  wife  is  founded  on  the  idea  that 
her  testimony,  if  received,  would   tend  to  destroy  domestic  peace,  and 

which  her  husband  is  a  party,  and  by  evi-  of  that  policy  which,  in  respect  to  the  har- 

dence  other  than  her  own,  may  po  to  charge  mony   to  be   desired  in  the  marriage  state, 

him.       The     unavailing     testimony     of     the  has  given   rise   to  the   rule  in   question." 
wife    in    such    a   case    is    entirely    impotent  Compare     the     authorities    cited    in    W.t 

as  it  relates  to  the  husband,  producing  him  §§  2234-22.^6. 

no  loss,   and   consequently   exciting  in   him  2 — Compare  the  authorities  cited  in   W., 

no  displeasure,   will   not   violate  the   reason  §  2237. 


474  PRIVILEGED   TOPICS.  No.  470. 

introduce  discord,  animosity,  and  confusion  in  its  place,  the  principle 
loses  its  influence  when  that  peace  has  already  become  wearisome  to  a 
passionate,  despotic,  and  perhaps  intoxicated  husband,  who  has  done  all 
in  his  power  to  render  the  wife  unhappy  and  destroy  all  mutual  affec- 
tion."^ 


4.     Privilege  Against  S  elf -Crimination. 

TRIAL  OF  WILLIAM  PENN  AND  WILLIAM  MEAD  (1670). 
6  How.  St.  Tr.  951,  ^57. 

Indictment   for  disturbing  the  peace  by  street-preaching.    Witness: 

"My  lord,  I  saw  a  great  number  of  people,  and  Mr.  Penn,  I  suppose,  was 

speaking;   I  saw  him  make  a  motion  with  his  hands,  and  heard 

'  some  noise,  but  could  not  understand  what  he  said.  But  for  Capt. 
Mead,  I  did  not  see  him  there."  Rec. :  "What  say  you,  Mr.  Mead,  were 
you  there  ?"  Mead :  "It  is  a  maxim  in  your  own  law,  'Nemo  tenetur  ac- 
cusare  seipsum'  which,  if  it  be  not  true  Latin,  I  am  sure  it  is  true 
English,  'that  no  man  is  bound  to  accuse  himself'."* 


Statutes.  United  States,  Constitution  1787,  Amendment  V.:  "No 
person  .  .  .  shall  be  compelled  in  any  criminal  case  to  be  a  witness 
472       against  himself'.^ 


Sir  J.  F.  Stephen,  History  of  the  Criminal  Law,  I,  342,  441,  535, 
542,  565  (1883):  "In  the  old  Ecclesiastical  Courts  and  in  the  Star 
Chamber  [the  ex  officio  oath]  was  understood  to  be  and  was  used 
*'**  as  an  oath  to  speak  the  truth  on  the  matters  objected  against  the 
defendant — an  oath,  in  short,  to  accuse  oneself.  It  was  vehemently 
contended  by  those  who  found  themselves  pressed  by  this  oath  that  it 
was  against  the  law  of  God,  and  the  law  of  nature,  and  that  the  maxim 
'nemo  tenetur  prodere  seipsum'  was  agreeable  to  the  law  of  God,  and 


3 — Compare   the   authorities  cited   in  W.,  himself,    or    furnish    evidence    against   him- 

§  2239.  self,     or     give     evidence     against     himself; 

4 — For   the   history    of  the  privilege,  see  and  it  is  contended  that  the  terms  of  the 

W.,  §  2250.  Constitution   of   the   United    States,   and   of 

5 — Blatchford,     J.,     in     Counselman     v.  the    constitutions     of    Georgia,     California, 

Hitchcock,     142    U.     S.    547     (1892);      "It  and   New   York   are   more   restricted.      But 

is   contended    on    the    part    of   the    appellee  we  are   of   opinion   that,   however   this   dif- 

that      .      .      .      the    constitutions    of    those  ference    may    have    been    commented    on    in 

States     [of    Virginia,     Massachusetts,     and  some   of   the    decisions,    there    is   really,    in 

New    Hampshire]     give    to    the    witness    a  spirit    and    principle,    no    distinction    arising 

broader    privilege    and    exemption    than     is  out  of  such  difference  of  language." 

granted  by  the   Constitution   of  the  United  For     other    constitutional    and    statutory 

States,    in    that    their    language    is    that    the  provisions,    see    W.,    §    2252,    and    the    stat- 

witness    shall    not    be    compelled    to    accuse  utes   quoted   post,    Appendix. 


No.  473.  SELF-CRIMINATION.  475 

part  of  the  law  of  nature.  In  this,  I  think,  as  in  most  other  discus- 
sions of  the  kind,  the  real  truth  was  that  those  who  disliked  the  oath 
had  usually  done  the  things  of  which  they  were  accused,  and  which 
they  regarded  as  meritorious  actions,  though  their  judges  regarded 
them  as  crimes.  People  always  protest  with  passionate  eagerness  against 
being  deprived  of  technical  defences  against  what  they  regard  as  bad 
law,  and  such  complaints  often  give  a  spurious  value  to  technicalities 
when  the  cruelty  of  the  laws  against  which  they  have  offered  protec- 
tion has  come  to  be  commonly  admitted.  .  .  .  [But  by  the  institution 
of  our  privilege  against  self-crimination]  the  result  of  the  whole  is  that 
as  matters  stand  the  prisoner  is  absolutely  protected  against  all  judi- 
cial questioning  before  or  at  the  trial.  .  .  .  This  is  one  of  the  most 
characteristic  features  of  English  criminal  procedure,  and  it  presents 
a  marked  contrast  to  that  which  is  common  to,  I  believe,  all  continental 
countries.  It  is,  I  think,  highly  advantageous  to  the  guilty.  It  con- 
tributes greatly  to  the  dignity  and  apparent  humanity  of  a  criminal  trial. 
It  effectually  avoids  the  appearance  of  harshness,  not  to  say  cruelty, 
which  often  shocks  an  English  spectator  in  a  French  court  of  justice; 
and  I  think  that  the  fact  that  the  prisoner  cannot  be  questioned  stimu- 
lates the  search  for  independent  evidence.  During  the  discussions  which 
took  place  on  the  Indian  Code  of  Criminal  Procedure  in  1872,  some 
observations  were  made  on  the  reasons  which  occasionally  lead  native 
police  officers  to  apply  torture  to  prisoners.  An  experienced  civil  officer 
observed,  'There  is  a  great  deal  of  laziness  in  it.  It  is  far  pleasanter 
to  sit  comfortably  in  the  shade  rubbing  red  pepper  into  a  poor  devil's 
eyes  than  to  go  about  in  the  sun  hunting  up  evidence.'  This  was  a 
new  view  to  me,  but  I  have  no  doubt  of  its  truth.  The  evidence  in  an 
English  trial  is,  I  think,  usually  much  fuller  and  more  satisfactory  than 
the  evidence  in  such  French  trials  as  I  have  been  able  to  study.  The 
Procureur  de  la  Republique  and  Juge  d'Instruction,  their  power  of  hold- 
ing inquiries,  drawing  up  proccs-verbanx,  examining  suspected  persons 
secretly,  and  without  informing  them  even  of  the  accusation  or  evidence 
against  them,  taking  depositions  behind  their  backs,  and  keeping  them 
in  solitary  confinement  till  (whatever  soft  words  may  be  used  about  it) 
every  effort  has  been  made  to  extort  a  confession  from  them,  are  con- 
ttasted  in  the  strongest  way  with  everything  v.ith  which  we  are  famil- 
iar, and  which  I  have  described,  in  detail,  in  the  preceding  chapters.  To 
keep  a  man  in  solitary  confinement  and  question  him  till  he  is  driven 
into  a  confession  is  not  the  less  torture  because  the  process  is  protracted 
instead  of  being  acute.  .  .  .  The  following  account  of  the  matter  is 
given  by  M.  Helie:  'The  magistrate  who  puts  questions  to  the  accused 
and  asks  explanations  from  him  has  the  right  to  interrogate  him  for 
the  purpose  of  extracting  his  excuse  or  his  confession  of  guilt.  He 
should,  without  harassing  or  confusing  him,  but  at  the  same  time  while 
requiring  a  disclosure,  encourage  his  freedom  of  utterance.  He  should, 
in  short,  with  the  most  complete  impartiality,  seek  solely  to  get  at  the 
truth.     The  interrogatory  must  be  neither  an  argument  nor  a  combat; 


476 


PRIVILEGED    TOPICS. 


No.  473. 


that  is  by  means  of  the  issue.  The  main  object  is  to  ascertain  the 
theory  of  the  defence,  and  thus  to  determine  the  details  of  the  issue  and 
the  points  therein  which  are  to  be  established.'  He  adds,  that  though 
the  interrogatory  is  not  essential,  yet  the  President  can  interrogate  the 
accused  either  before  or  after  the  witnesses  are  heard,  the  former  being 
the  common  course.  .  .  .  Whatever  may  be  the  law  on  the  subject,  the 
fact  unquestionably  is  that  the  interrogation  of  the  accused  by  the  Presi- 
dent is  not  only  the  first,  but  is  also  the  most  prominent,  conspicuous, 
and  important  part  of  the  whole  trial.  Moreover,  all  the  reports  of 
French  trials  which  I  have  seen,  and  I  have  read  very  many,  suggest 
that  the  views  taken  by  M.  Helie  as  to  the  proper  object  of  the  interroga- 
tory, and  the  proper  method  of  carrying  it  on,  are  not  shared  by  the 
great  majority  of  French  Presidents  of  Cours  d'Assises.  The  accused 
is  cross-examined  with  the  utmost  severity,  and  with  continual  rebuke, 
sarcasms,  and  exhortations,  which  no  counsel  in  an  English  court  would 
be  permitted  by  any  judge  who  knew  and  did  his  duty  to  address  to 
any  witness.  This  appears  to  me  to  be  the  weakest  and  most  objec- 
tionable part  of  the  whole  system  of  French  criminal  procedure  (except 
parts  of  the  law  as  to  the  functions  of  the  jury).  It  cannot  but  make 
the  judge  a  party — and  what  is  more,  a  party  adverse  to  the  prisoner; 
and  it  appears  to  me,  apart  from  this,  to  place  him  in  a  position  essen- 
tially undignified  and  inconsistent  with  his  other  functions.  .  .  .  This 
comparison  of  French  and  English  criminal  procedure  naturally  sug- 
gests the  question,  Which  of  the  two  is  the  best?  To  a  person  accus- 
tomed to  the  English  system  and  to  English  ways  of  thinking  and  feeling 
there  can  be  no  comparison  at  all  between  them.  However  well  fitted 
it  may  be  for  France,  the  French  system  would  be  utterly  intolerable 
in  England.  .  .  .  The  whole  temper  and  spirit  of  the  French  and  the 
English  differs  so  widely,  that  it  would  be  rash  for  an  Englishman 
to  speak  of  trials  in  France  as  they  actually  are.  We  can  think 
of  the  system  only  as  it  would  work  if  transplanted  into  England.  It 
may  well  be  that  it  not  only  looks,  but  is,  a  very  different  thing  in  France. 
.  .  .  The  best  way  of  comparing  the  working  of  the  two  systems  is  by 
comparing  trials  which  have  taken  place  under  them.  For  this  pur- 
pose I  have  given  at  the  end  of  this  work  detailed  accounts  of  seven 
celebrated  trials,  four  English  and  three  French,  which  afford  strong 
illustrations  of  the  results  of  the  two  systems.  It  seems  to  me  that 
a  comparison  between  them  shows  a  superiority  of  the  English  system 
even  more  remarkably  than  any  general  observations  which  may  be 
made  on  the  subject.  In  every  one  of  the  English  cases  the  evidence 
is  fuller,  clearer,  and  infinitely  more  cogent  than  it  is  in  any  one  of  the 
French  cases, — notwithstanding  which,  far  less  time  was  occupied  by 
the  English  trials  than  by  the  French  ones,  and  not  a  word  was  said  or 
a  step  taken  which  any  one  can  represent  as  cruel  or  undignified." 


No.  474.  SELF-CRIMINATION.  477 


a.       Scope  of  the  Privilege. 

PAXTON  V.  DOUGLAS    (1809). 
16  Ves.  Jr.  2JP,  242,  ip  id.  22^. 

The  plaintiffs  filed  the  bill  as  creditors  of  Peter  Douglas,  deceased, 
on  behalf  of  themselves  and  all  the  other  creditors,  &c.,  an  exception 
was  taken  to  the  Master's  Certificate,  that  he  had  allowed  in- 
^^^  terrogatories  for  the  examination  of  Charles  Christie;  claiming 
as  a  bond  creditor  of  Douglas.  The  interrogatories,  as  allowed  by  the 
Master,  inquired,  ist,  generally  as  to  the  consideration  for  the  bond 
for  2600I. ;  whether  money,  goods,  &c. :  2dly,  whether  Christie  was  not 
before  and  at  the  date  of  the  bond  entitled  to  four-sixteenths  parts  of 
the  ship  Belvidere,  in  the  service  of  the  East  India  Company;  and  was 
not  the  commander  of  the  said  ship;  whether  Douglas  did  not  contract 
for  the  purpose  of  such  shares  for  2400I. :  whether  that  was  a  fair  price : 
whether  it  was  paid ;  as  to  the  circumstances  of  payment,  &c. :  3d, 
whether  Douglas,  or  his  nephew  James  Peter  Fearon,  at  the  same  time 
made  some  and  what  proposal  or  offer  to  purchase  from  him  the  com- 
mand of  the  said  ship,  for  any  and  what  sum;  and  how  such  sum  was 
to  be  paid  and  secured :  4th,  whether  he  treated,  or  made,  or  concluded, 
any  and  what  bargain  with  Douglas  or  Fearon,  for  the  sale  of  the  com- 
mand to  Fearon  for  the  sum  of  2600/.  or  any  other  and  what  sum :  5th, 
whether,  and  when  he  (Christie,)  resigned  the  command:  and  was  not 
Fearon,  and  when,  and  by  whose  recommendation  or  procurement,  ap- 
pointed to  the  command:  6th,  whether  he  had,  or  not,  proved  the  bond 
under  a  Commission  of  Bankruptcy  against  Fearon;  and  if  not,  why? 

Christie  objected  to  answer  these  interrogatories;  on  the  ground 
that  his  answer  might  criminate  himself;  and  subject  him  to  a  forfeit- 
ure under  the  East  India  Company's  Bye-Laws ;  declaring,  that  no  owner 
or  part-owner  of  any  ship,  or  any  commander,  or  other  person,  shall 
directly  or  indirectly  sell,  or  take  any  gratuity  or  consideration,  nor 
shall  any  person  or  persons  buy,  pay,  or  give,  any  gratuity  or  considera- 
tion, for  the  command  of  any  ship  or  ships,  to  be  freighted  to  the 
Company;  and  in  case  any  such  contract,  payment,  or  gift,  shall  be 
made,  the  commander,  or  intended  commander,  concerned  therein,  shall 
from  henceforth  be  incapable  of  being  employed,  or  of  serving  the  Com- 
pany in  any  capacity  whatsoever.  .  .  . 

Mr.  Richards  and  Mr.  Rouble,  for  the  Report,  insisted  that.  .  .  . 
some  of  the  interrogatories,  the  first,  for  instance,  going  to  the  con- 
sideration, generally,  could  not  be  objected  to. 

Eldon,  L.  C.  :  "If  a  series  of  questions  are  put,  all  meant  to  estab- 
lish the  same  criminality,  you  cannot  pick  out  a  p^articular  question  and 
say.  if  that  alone  had  been  put,  it  might  have  been  answered.  .  .  He 
is  at  liberty  to  protect  himself  against  answering,  not  only  the  direct 
question  whether  he  did  what  was  illef^al,  but  also  every  question  fairly 


478 


PRIVILEGED   TOPICS. 


No.  474. 


appearing  to  be  put  with  a  view  of  drawing  from  him  an  answer  con- 
taining nothing  to  affect  him  except  as  it  is  one  link  in  a  chain  of  proof 
that  is  to  affect  him."^ 


AARON  BURR'S  TRIAL    (1807). 
Robertson's  Rep.  I,  208,  244. 

Treason;  a  cipher  letter  was  placed  before  the  witness,  who  had 
been  secretary  to  the  defendant,  and  he  was  asked  by  Mr.  McRea,  for 
the  prosecution  :  "Do  you  understand  the  contents  of  that  paper  ?" 
4:<o  Mr.  Williams,  for  the  defendant:  "He  objects  to  answer.  He 
says  that,  though  that  question  may  be  an  innocent  one,  yet  the  coun- 
sel for  the  prosecution  might  go  on  gradually,  from  one  question  to 
another,  until  he  at  last  obtained  matter  enough  to  criminate  him.  If 
a  man  know  of  treasonable  matter,  and  do  not  disclose  it,  he  is  guilty 
of  misprision  of  treason.  .  .  .  The  knowledge  of  the  treason,  again 
comprehends  two  ideas, — that  he  must  have  [i]  seen  and  understood 
[2]  the  treasonable  matter.  To  one  of  these  points  Mr.  W.  is  called 
upon  to  depose ;  if  this  be  established,  who  knows  but  the  other  elements 
of  the  crime  may  be  gradually  unfolded  so  as  to  implicate  him?" 

Marshall,  C.  J.,  sanctioning  the  witness'  refusal:  "According  to 
their  [the  prosecution's]  statement,  a  witness  can  never  refuse  to  answer 
any  question  unless  that  answer,  unconnected  with  other  testimony, 
would  bi  sufificient  to  convict  him  of  a  crime.  This  would  be  rendering 
the  rule  almost  perfectly  worthless.  Many  links  frequently  compose 
that  chain  of  testimony  which  is  necessary  to  convict  any  individual  of 
a  crime.  It  appears  to  the  Court  to  be  the  true  sense  of  the  rule  that 
no  witness  is  compellable  to  furnish  any  one  of  them  against  himself. 
It  is  certainly  not  only  a  possible  but  a  probable  case  that  a  witness, 
by  disclosing  a  single  fact,  may  complete  the  testimony  against  him- 
self, and  to  every  effectual  purpose  accuse  himself  as  entirely  as  he 
would  by  stating  every  circumstance  which  would  be  required  for  his 
conviction.  That  fact  of  itself  might  be  unavailing;  but  all  other  facts 
without  it  would  be  insufficient.     While  that  remains  concealed  within 


1 — V.  C  Leach,  in  Green  v.  Weaver,  i 
Sim.  404,  430  (1827):  "[L.  C.  Eldon,  in 
Paxton  V.  Douglas,']  went  there  to  the  ex- 
tent of  stating,  not  only  that  a  man  should 
not  make  a  discovery  that  would  subject 
himself  directly  to  penalty  or  criminal  pros- 
ecution, but  that  every  question  leading 
incidentally  to  that  conclusion  would  be 
likewise  equally  objectionable.  Now  when 
one  comes  to  look  at  that  as  a  proposition 
unexplained,  one  cannot  help  seeing  that 
the  true  principle  of  a  bill  in  equity  is 
that  every  statement  of  fact  in  every  bill 
ought  to  be  'incidentally  leading'  to  the 
same  conclusion,  ultimately,  as  the  prayer 
of   the   bill    does   lead   to;    for   the    fact   is 


either  conducive  to  the  general  result  or 
it  is  unimportant  and  irrelevant.  But  I 
take  Lord  Eldon  to  have  meant  (and  which 
perhaps  is  not  very  fully  explained  in  the 
report,  and  which  satisfied  my  mind  a  good 
deal)  not  that  every  fact  which  may  lead 
to  the  effect  of  subjecting  a  defendant  to 
a  penalty,  is  objectionable;  but  where  the 
sole  gist  and  object  of  the  suit  is  to  con- 
vict a  man  in  a  penalty,  where  there 
would  be  no  other  purpose  but  to  have  re- 
lief in  a  court  of  equity  on  the  footing 
of  penalty,  that,  as  a  Court  of  equity  does 
not  relieve  on  penalty,  it  will  not  give 
any  incidental  discovery." 


No.  476.  SELF-cr.i:,rixATiON.  479 

his  bosom,  he  is  safe;  but  draw  it  from  thence,  and  he  is  exposed  to  a 
prosecution.  The  rule  which  declares  that  no  man  is  compellable  to 
accuse  himself  would  most  obviously  be  infringed  by  compelling  a  wit- 
ness to  disclose  a  fact  of  this  description.  WHiat  testimony  may  be 
possessed,  or  is  attainable,  against  any  individual,  the  Court  can  never 
know.  It  would  seem,  then,  that  the  Court  ought  never  to  compel  a 
witness  to  give  an  answer  which  discloses  a  fact  that  would  form  a  neces- 
sary and  essential  part  of  a  crime  which  is  punishable  by  the  laws."'^ 


WARD  V.  STATE    (1829). 

2  Mo.  120,  122. 

McGirk,  C.  J. :  "The  case  appears  by  the  record  to  be,  that  at  the 
late  term  of  the  Circuit  Court  for  the  county  of  St.  Louis,  the  grand 
jury  for  said  county  caused  a  subpoena  to  be  issued  for  said  Ward, 
*'"  to  appear  before  them  and  testify  generally,  without  saying  in 
what  particular  matter  or  cause  he  was  to  testify.  Ward  accordingly 
appeared,  and  was  sworn  to  give  evidence  to  the  grand  jury.  He  went 
before  the  grand  jury  to  testify.  The  first  question  asked  by  the  fore- 
man of  the  grand  jury  was  this:  'Do  you  know  of  any  person  or  per- 
sons having  bet  at  a  faro  table  in  this  county,  within  the  last  twelve 
months  ?'  To  which  the  witness  answered,  T  do.'  The  foreman  then 
desired  the  witness  to  tell  what  person  or  persons  have  so  bet,  other  than 
himself,  and  not  naming  himself.  The  witness  declined  answering,  say- 
ing that  he  could  not  answer  without  implicating  himself.  Ward  was 
then  directed  by  the  Court  to  answer  the  requirements  of  the  grand 
jury,  but  not  to  name  himself  as  a  better;  which  he  refused,  alleging 
that  to  answer  thus  would  implicate  himself.  Whereupon  the  Court 
committed  him  to  prison,  till  he  should  consent  to  give  the  evidence 
required,  and  till  the  further  order  of  the  Court.  A  writ  of  error  is 
sued  on,  a  supersedeas  asked  for.  .  .  .  Was  the  witness  right  in  refus- 
ing to  answer  the  question  on  the  ground  that  the  answer  would  impli- 
cate himself?  The  record  shows  that  the  game  of  faro  is  played  with 
cards,  by  one  person  as  banker  against  any  number  of  persons,  each 
person  playing  for  himself,  without  any  aid  from  the  others,  against 
the  banker;  and  that  there  is  no  common  interest  among  those  persons 
playing  against  the  banker.  Thus  it  appears  that  each  player  against 
the  bank  is  separate  and  independent  o^  all  others.  The  inquiry  made 
by  the  grand  jury  is  'Tell  who  bet  at  the  game  of  faro,  not  naming 
yourself.'  The  answer  of  the  witness  is  (supposing  him  to  be  A)  that 
'if  I  tell  that  B,  C,  and  D  played,  it  will  be  either  full  or  partial  evi- 
dence that  I  played.'  This  is  the  whole  argument  of  the  case. — an  argu- 
ment which  I  think  is  totally  untenable  in  law  and  reason.  .  .  .  The 
question  is,  'Who  did  you  see  betting  at  faro  except  yourself?'   It  is  be- 

2 — Compare  the  authorities    cited    in  W.,   §  2260. 


480  PRIVILEGED   TOPICS.  No.  476. 

Heved  that  a  direct  answer  in  the  negative  to  this  would  be,  'I  saw  no 
one  bet  at  faro.'  This  answer,  I  think,  all  will  allow,  does  not  accuse 
him.  But  suppose  his  answer  must  be,  that  he  saw  B  bet  at  faro,  can 
it  not  be  true  that  though  B  bet,  yet  he,  the  witness,  did  not?  Does  the 
mere  fact  that  one  man  saw  another  commit  crime,  prove  in  law  or 
reason  that  he  who  saw  the  crime  committed  was  a  participator  ?  .  .  . 
But  in  this  case  it  is  said,,  if  the  witness  is  bound  to  tell  who  bet  at  the 
game,  without  naming  himself,  then  those  persons  who  are  named  will 
be  examined  as  to  the  fact,  whether  he  bet;  and  if  the  witness  is  not 
compelled  to  name  who  did  bet,  then  they  will  remain  unknown  to  the 
grand  jury,  and  cannot  be  examined  whether  the  witness  bet.  I  under- 
stand this  doctrine  to  be  grounded  more  on  the  fear  of  retaliation  than 
on  any  sound  principle  of  law.  Will  the  law  permit  a  man  to  keep 
offences  and  offenders  a  secret,  lest  the  offenders  should  in  their  turn 
give  evidence  against  him  ?  I  have  looked  into  the  cases  cited  at  the 
bar,  and  I  am  unable  to  perceive  any  principle,  in  any  of  them,  which 
ought  to  vary  the  foregoing  opinion."^ 


BOYD  V.  UNITED  STATES    (1885). 

116  U.  S.  616,  6  Sup.  437,  524. 

Information  for  evasion  of  customs  dues  by  fraudulent  invoicing. 
On  the  order  of  the  trial  Court,  the  invoice  was  compelled  to  be  pro- 
duced by  the  defendant  for  inspection  in  court,  under  St.  June 
*"  22,  1874,  §5,  Rev.  St.  1878,  §724  {ante  No.  396),  requiring  pro- 
duction on  motion,  and  taking  the  facts  to  be  confessed  as  alleged,  in 
case  of  failure  to  produce.  This  order  was  held  unconstitutional,  under 
the  Fifth  and  also  the  Fourth  Amendments;  the  present  ca^se  was  held 
to  be  in  effect  a  criminal  proceeding.  Waite,  C.  J.,  and  Miller,  J., 
dissented,  solely  to  the  extent  of  holding  that  Court's  order  was  not  for 
a  search  nor  a  seizure  and  therefore  not  within  the  prohibition  of  the 
Fourth  Amendment.  The  opinion  of  Bradley,  J-,  for  the  majority, 
gave  the  following  exposition  of  reasons :  "The  principal  question,  how- 
ever, remains  to  be  considered.  It  is  a  search  and  seizure,  or,  what  is 
equivalent  thereto,  a  compulsory  production  of  a  man's  private  papers, 
to  be  used  in  evidence  against  him  in  a  proceeding  to  forfeit  his  prop- 
erty for  alleged  fraud  against  the  revenue  laws — is  such  a  proceeding 
for  such  a  purpose  an  'unreasonable  search  and  seizure'  within  the  mean- 
ing of  the  Fourth  Amendment  of  the  Constitution  ?  or,  is  it  a  legitimate 
proceeding?  It  is  contended  by  the  counsel  for  the  government,  that 
it  is  a  legitimate  proceeding,  sanctioned  by  long  usage,  and  the  authority 
of  judicial  decision.  ...  In  order  to  ascertain  the  nature  of  the  proceed- 
ings intended  by  the  Fourth  Amendment  to  the  Constitution  under  the 
terms  'unreasonable  searches  and  seizures,'  it  is  only  necessary  to  recall 
the   contemporary   or   then   recent   history  of  the   controversies   on   the 

3 — Compare   the   authorities   cited    in   W.,   §  2262. 


No.  477.  SELF-CRIMINATION.  481 

subject,  both  in  this  country  and  in  England.  The  practice  had  ob- 
tained in  the  colonies  of  issuing  writs  of  assistance  to  the  revenue 
officers,  empowering  them,  in  their  discretion,  to  search  suspected  places 
for  smuggled  goods,  which  James  Otis  pronounced  the  worst  instru- 
ment of  arbitrary  power,  the  most  destructive  of  English  liberty,  and 
the  fundamental  principles  of  law,  that  ever  was  found  in  an  English 
law  book;'  since  they  placed  'the  liberty  of  every  man  in  the  hands 
of  every  petty  officer.'  This  was  in  February,  1761,  in  Boston,  and  the 
famous  debate  in  which  it  occurred  was  perhaps  the  most  prominent  event 
which  inaugurated  the  resistance  of  the  colonies  to  the  oppressions  of 
the  mother  country.  'Then  and  there,'  said  John  Adams,  'then  and 
there  was  the  first  scene  of  the  first  act  of  opposition  to  the  arbitrary 
claims  of  Great  Britain.  Then  and  there  the  child  Independence  was 
born.'  These  things,  and  the  events  which  took  place  in  England  imme- 
diately following  the  argument  about  writs  of  assistance  in  Boston,  were 
fresh  in  the  memories  of  those  who  achieved  our  independence  and 
established  our  form  of  government.  In  the  period  from  1762,  when 
the  North  Briton  was  started  by  John  Wilkes,  to  April,  1766,  when 
the  House  of  Commons  passed  resolutions  condemnatory  of  general  war- 
rants, whether  for  the  seizure  of  persons  or  papers,  occurred  the  bitter 
controversy  between  the  English  government  and  Wilkes,  in  which 
the  latter  appeared  as  the  champion  of  popular  rights,  and  was,  indeed, 
the  pioneer  in  the  contest  which  resulted  in  the  abolition  of  some 
grievous  abuses  which  had  gradually  crept  into  the  administration  of 
public  affairs.  Prominent  and  principal  among  these  was  the  practice 
of  issuing  general  warrants  by  the  Secretary  of  State,  for  searching 
private  houses  for  the  discovery  and  seizure  of  books  and  papers  that 
might  be  used  to  convict  their  owner  of  the  charge  of  libel.  Certain 
numbers  of  the  North  Briton,  particularly  No.  45,  had  been  very  bold 
in  denunciation  of  the  government,  and  were  esteemed  heinously  libel- 
lous. By  authority  of  the  secretary's  warrant  Wilkes's  house  was 
searched,  and  the  papers  were  indiscriminately  seized.  For  this  out- 
rage he  sued  the  perpetrators  and  obtained  a  verdict  of  fiooo  against 
Wood,  one  of  the  party  who  made  the  search,  and  £4000  against  Lord 
Halifax,  the  Secretary  of  State  who  issued  the  warrant.  The  case, 
however,  which  will  always  be  celebrated  as  being  the  occasion  of  Lord 
Camden's  memorable  discussion  of  the  subject,  was  that  of  Entick  v. 
Carrington  and  Three  Other  King's  Messengers,  reported  at  length 
in  19  Howell's  State  Trials,  1029.  The  action  was  trespass  for  enter- 
ing the  plaintiff's  dwelling-house  in  November,  1762,  and  breaking  open 
his  desks,  boxes,  &c.,  and  searching  and  examining  his  papers.  The 
jury  rendered  a  special  verdict,  and  the  case  was  twice  solemnly  argued 
at  the  bar.  Lord  Camden  pronounced  the  judgment  of  the  court  in 
Michaelmas  Term,  1765,  and  the  law  as  expounded  by  him  has  been 
regarded  as  settled  from  that  time  to  this,  and  his  great  judgment  on 
that  occasion  is  considered  as  one  of  the  landmarks  of  English  liberty. 
It  was  welcomed  and  applauded  by  the  lovers  of  liberty  in  the  colonies 


482  PRIVILEGED   TOPICS,  No.  477, 

as  well  as  in  the  mother  country.  It  is  regarded  as  one  of  the  perma- 
nent monuments  of  the  British  Constitution,  and  is  quoted  as  such  by 
the  English  authorities  on  that  subject  down  to  the  present  time.  .  .  . 

"The  principles  laid  down  in  this  opinion  affect  the  very  essence  of 
constitutional  liberty  and  security.  They  reach  farther  than  the  con- 
crete form  of  the  case  then  before  the  court,  with  its  adventitious  cir- 
cumstances ;  they  apply  to  all  invasions  on  the  part  of  the  government 
and  its  employes  of  the  sanctity  of  a  man's  home  and  the  privacies  of  life. 
It  is  not  the  breaking  of  his  doors,  and  the  rummaging  of  his  drawers, 
that  constitutes  the  essence  of  the  offence;  but  it  is  the  invasion  of  his 
indefeasible  right  of  personal  security,  personal  liberty  and  private  prop- 
erty, where  that  right  has  never  been  forfeited  by  his  conviction  of  some 
public  offence, — it  is  the  invasion  of  this  sacred  right  which  underlies 
and  constitutes  the  essence  of  Lord  Camden's  judgment.  Breaking 
into  a  house  and  opening  boxes  and  drawers  are  circumstances  of  aggra- 
vation ;  but  any  forcible  and  compulsory  extortion  of  a  man's  own  tes- 
timony or  his  private  papers  to  be  used  as  evidence  to  convict  him  of 
crime  or  to  forfeit  his  goods,  it  within  the  condemnation  of  that  judg- 
ment. In  this  regard  the  Fourth  and  Fifth  Amendments  run  almost 
into  each  other.  Can  we  doubt  that  when  the  Fourth  and  Fifth  Amend- 
ments to  the  Constitution  of  the  United  States  were  penned  and  adopted, 
the  language  of  Lord  Camden  was  relied  on  as  expressing  the  true  doc- 
trine on  the  subject  of  searches  and  seizures,  and  as  furnishing  the  true 
criteria  of  the  reasonable  and  'unreasonable'  character  of  such  seiz- 
ures? Could  the  men  who  proposed  those  amendments,  in  the  light  of 
Lord  Camden's  opinion,  have  put  their  hands  to  a  law  like  those  of 
March  3,  1863,  and  March  2,  1867,  before  recited?  If  they  could  not, 
would  they  have  approved  the  5th  section  of  the  act  of  June  22,  1874, 
which  was  adopted  as  a  substitute  for  the  previous  laws?  It  seems 
to  us  that  the  question  cannot  admit  of  a  doubt.  They  never  would  have 
approved  of  them.  The  struggles  against  arbitrary  power  in  which  they 
have  been  engaged  for  more  than  twenty  years,  would  have  been  too 
deeply  engraved  in  their  memories  to  have  allowed  them  to  approve 
of  such  insidious  disguises  of  the  old  grievance  which  they  had  so 
deeply  abhorred.  .  .  . 

"We  have  already  noticed  the  intimate  relation  between  the  two 
amendments.  They  throw  great  light  on  each  other.  For  the  'unreason- 
able searches  and  seizures'  condemned  in  the  Fourth  Amendment  are 
almost  always  made  for  the  purpose  of  compelling  a  man  to  give  evi- 
dence against  himself,  which  in  criminal  cases  is  condemned  in  the 
Fifth  Amendment ;  and  compelling  a  man  'in  a  criminal  case  to  be  a 
witness  against  himself,'  which  is  condemned  in  the  Fifth  Amendment, 
throws  light  on  the  question  as  to  what  is  an  'unreasonable  search  and 
seizure'  within  the  meaning  of  the  Fourth  Amendment.  And  we  have 
been  unable  to  perceive  that  the  seizure  of  a  man's  private  books  and 
papers  to  be  used  in  evidence  against  him  is  substantially  different  from 
compelling  him  to  be  a  witness  against  himself.    We  think  it  is  within 


'No.  477.  SELF-CRIMINATION.  483 

the  clear  intent  and  meaning  of  those  terms.  .  .  .  As,  therefore,  suits 
for  penalties  and  forfeitures  incurred  by  the  commission  of  otTences 
against  the  law,  are  of  this  quasi-criminal  nature,  we  think  that  they 
are  within  the  reason  of  criminal  proceedings  for  all  the  purposes  of 
the  Fourth  Amendment  of  the  Constitution,  and  of  that  portion  of  the 
Fifth  Amendment  which  declares  that  no  person  shall  be  compelled  in 
any  criminal  case  to  be  a  witness  against  himself;  and  we  are  further 
of  opinion  that  a  compulsory  production  of  the  private  books  and  papers 
of  the  owner  of  goods  sought  to  be  forfeited  in  such  a  suit  is  compelling 
him  to  be  a  witness  against  himself,  within  the  meaning  of  the  Fifth 
Amendment  to  the  Constitution,  and  is  the  equivalent  of  a  search  and 
seizure — and  an  unreasonable  search  and  seizure — within  the  meaning 
of  the  Fourth  Amendment.  ..." 

Miller,  J.,  and  Waite,  C.  J.:  "I  concur  in  the  judgment  of  the 
court,  reversing  that  of  the  Circuit  Court,  and  in  so  much  of  the  opinion 
of  this  court  as  holds  the  5th  section  of  the  act  of  1874  void  as  applicable 
to  the  present  case.  I  am  of  the  opinion  that  this  is  a  criminal  case 
within  the  meaning  of  the  clause  of  the  Fifth  Amendment  to  the  Con- 
stitution of  the  United  States  which  declares  that  no  person  'shall  be 
compelled  in  any  criminal  case  to  be  a  witness  against  himself.'  And  I 
am  quite  satisfied  tliat  the  effect  of  the  act  of  Congress  is  to  compel 
the  party  on  whom  the  order  of  the  court  is  served  to  be  a  witness 
against  himself.  The  order  of  the  court  under  the  statute  is  in  effect 
a  subpoena  duces  tecum,  and  though  the  penalty  for  the  witness's  failure 
to  appear  in  court  with  the  criminating  papers  is  not  fine  and  imprison- 
ment, it  is  one  which  may  be  made  more  severe,  namely,  to  have  charges 
against  him  of  a  criminal  nature,  taken  for  confessed  and  made  the 
foundation  of  the  judgment  of  the  court.  That  this  is  within  the  pro- 
tection which  the  Constitution  intended  against  compelling  a  person  to 
be  a  witness  against  himself,  is,  I  think,  quite  clear. 

"But  this  being  so,  there  is  no  reason  why  this  court  should  assume 
that  the  action  of  the  court  below,  in  requiring  a  party  to  produce  cer- 
tain papers  as  evidence  on  the  trial,  authorizes  an  unreasonable  search 
or  seizure  of  the  house,  papers,  or  effects  of  that  party.  There  is  in 
fact  no  search  and  no  seizure  authorized  by  the  statute.  No  order  can 
be  made  by  the  Court  under  it  which  requires  or  permits  anything  more 
than  service  of  notice  on  a  party  in  suit.  .  .  .  Nothing  in  the  nature  of 
a  search  is  here  hinted  at.  Nor  is  there  any  seizure,  because  the  party 
is  not  required  at  any  time  to  part  with  the  custody  of  the  papers.  They 
are  to  be  produced  in  court,  and,  when  produced,  the  United  States  attor- 
ney is  permitted,  under  the  direction  of  the  court,  to  make  examination 
in  the  presence  of  the  claimant,  and  may  offer  in  evidence  such  entries 
m  the  books,  invoices,  or  papers  as  relate  to  the  issue.  .  .  .  While  the 
framers  of  the  Constitution  had  their  attention  drawn,  no  doubt,  to  the 
abuses  of  this  power  of  searching  private  houses  and  seizing  private 
papers,  as  practiced  in  England,  it  is  obvious  that  they  only  intended  to 
restrain  the  abuse,  while  they  did  not  abolish  the  power.     Hence  it  is 


484  PRIVILEGED    TOPICS.  Ko.  477. 

only  unreasonable  searches  and  seizures  that  are  forbidden,  and  the 
means  of  securing  this  protection  was  by  aboUshing  searches  under  war- 
rants, which  were  called  general  warrants,  because  they  authorized 
searches  in  any  place,  for  any  thing.  This  was  forbidden,  while  searches 
founded  on  affidavits,  and  made  under  warrants  which  described  the 
thing  to  be  searched  for,  the  person  and  place  to  be  searched,  are  still 
permitted.  I  cannot  conceive  how  a  statute  aptly  framed  to  require  the 
production  of  evidence  in  a  suit  by  mere  service  of  notice  on  the  party, 
who  has  that  evidence  in  his  possession,  can  be  held  to  authorize  an 
unreasonable  search  or  seizure,  when  no  seizure  is  authorized  or  per- 
mitted by  the  statute." 


STATE  V.  FLYNN    (icSsS). 
36  N.  H.  64. 

The  respondent  was  indicted  for  keeping  for  sale  a  large  quantity 
— to-wit,  ten  gallons — of  intoxicating  liquor,  not  being  an  agent  for  the 
sale  of  such  liquor,  and  the  liquor  not  being  domestic  wine,  &c., 
**^  contrary  to  the  statute,  &c.  Upon  the  general  issue  the  State  in- 
troduced evidence  tending  to  show  that  A.  P.  Colby,  an  assistant  mar- 
shall  of  the  city  of  Manchester,  acting  under  a  warrant  issued  by  the 
police  court  of  said  city,  which  was  not  produced  or  offered  as  evidence, 
went  with  assistants  to  the  place  occupied  by  the  respondent,  on  Elm 
street,  in  Manchester,  and  there  made  search  for  spirituous  liquors.  The 
respondent's  counsel  then  objected  to  the  admission  of  any  evidence 
of  the  facts  ascertained  upon  such  search,  upon  the  ground  that  the 
statute  for  the  suppression  of  intemperance,  so  far  as  it  purports  to 
authorize  a  search  for  spirituous  liquors,  particularly  the  fourth  section 
of  the  statute,  is  repugnant  to  the  Constitution  of  the  United  States 
and  of  this  State,  and  any  evidence  obtained  under  such  unconstitu- 
tional enactment  is  inadmissible,  because  it  is  in  the  nature  of  admissions 
made  by  the  respondent  under  duress,  and  the  respondent  is  thus  com- 
pelled to  furnish  evidence  against  himself;  but  the  Court  admitted  the 
evidence.  The  jury  having  found  a  verdict  against  the  respondent,  his 
counsel  move  for  a  new  trial,  by  reason  of  said  decision. 

Ball,  J.:  "The  objection  made  in  this  case  does  not  go  so  far  as 
to  insist  that  all  evidence  obtained  under  a  search-warrant  is  incompe- 
tent. ...  Its  ground  is,  rather,  that  information  obtained  by  means 
of  a  search-warrant,  in  a  case  not  authorized  by  the  Constitution,  is  not 
competent  to  b0  given  in  evidence,  because  it  has  been  obtained  by  com- 
pulsion from  the  defendant  himself,  in  violation  of  that  clause  of  the 
Constitution  which  provides  that  no  person  shall  be  compelled  to  fur- 
nish evidence  against  himself.  ...  It  seems  to  us  an  unfounded  idea 
that  the  discoveries  made  by  the  officers  and  their  assistants,  in  the  exe- 
cution of  process,  whether  legal  or  illegal,  or  where  they  intrude  upon 
a  man's  privacy  without  any  legal  warrant,  are  of  the  nature  of  admis- 


No.  479.  SELF-CRIMINATION.  485 

sions  made  under  duress,  or  that  it  is  evidence  furnished  by  the  party 
himself  upon  compulsion.  The  information  thus  acquired  is  not  the  ad- 
mission of  a  party,  nor  evidence  given  by  him,  in  any  sense.  The  party 
has  in  his  power  certain  mute  witnesses,  as  they  may  be  called,  which 
he  endeavors  to  keep  out  of  sight,  so  that  they  may  not  disclose  the  facts 
which  he  is  desirous  to  conceal.  By  force  or  fraud  access  is  gained  to 
them,  and  they  are  examined,  to  see  what  evidence  they  bear.  That 
evidence  is  theirs,  not  their  owner's.  ...  It  does  not  seem  to  us  pos- 
sible to  establish  a  sound  distinction  between  that  case,  and  the  case  of 
the  counterfeit  bills,  the  forger's  implements,  the  false  keys,  or  the 
like,  which  have  been  obtained  by  similar  means.  The  evidence  is  in 
no  sense  his."'* 


UNITED  STATES  v.  CROSS  (1892). 

20  D.  C.  j(55,  ^82. 

Cox,  J. :  "The  defendant  was  indicted  for  murdering  his  wife  on  the 
first  day  of  October,  1889.  .  .  .  Exception  No.  42  was  to  the  admission 
of  the  record  in  the  Marshal's  office  as  to  the  height  of  the  de- 
**  fendant.  It  seems  that  he  was  called  into  a  room  in  the  Mar- 
shal's office,  and  his  measurement  taken,  and  that  was  done  after  he  was 
convicted  at  the  first  trial.  ...  It  appeared  that  Mr.  Carroll  was  the 
clerk,  and  testified  that  there  is  a  book  kept  in  the  office  of  the  Marshal 
in  which  all  the  measurements  of  convicted  persons  are  kept,  and  a  de- 
scription of  the  convicted  persons  written  down  and  furnished  the 
Department  of  Justice.  They  are  required  to  keep  that  book  and  the 
practice  was  for  somebody  to  take  the  measurement  and  call  it  out  to 
him,  and  he  reduced  it  to  writing.  He  identified  the  book  produced  as 
the  one  used,  and  then  gave  the  measurement  of  the  defendant.  That 
was  objected  to  on  several  grounds.  .  .  There  is  still  a  further  objection 
made  to  it  and  that  is,  that  it  is  an  effort  to  compel  the  defendant  to  give 
evidence  against  himself.  It  must  be  remembered  that  when  this  meas- 
urement was  taken,  the  defendant  was  convicted,  and,  therefore,  it  was 
not  taken  with  the  view  to  a  trial  or  for  use  upon  a  trial.  There  does 
not  seem  to  be  any  reason  why  it  could  not  be  used  after  it  had  been 
taken  under  the  circumstances  stated.  It  could  not  be  contended  that 
the  knowledge  of  the  size  or  height  of  a  man  acquired  in  any  other  way, 
for  instance  by  a  tailor,  could  not  be  used  when  at  the  time  it  was  not 
taken  for  the  purpose  of  being  used  as  testimony,  and  it  seems  to  us  that 
a  record  taken  as  this  was,  for  a  lawful  purpose  and  under  the  rules  of 
the  office,  might  be  made  use  of  afterwards.  It  does  not  seem  to  us  that 
it  is  compelfing  the  defendant  to  give  evidence  against  himself,  although 
some  cases  that  have  been  cited  to  us  go  very  far  in  that  direction. 
There  was  one  case  holding  that  it  was  error  for  the  prosecuting  officer 

4 — Compare  the  authorities  cited   in   W.,  §  2264;     and   No.    440,  ante. 


486 


PRIVILEGED   TOPICS. 


No.  479. 


to  compel  the  prisoner  in  court  to  put  his  foot  into  a  vessel  filled  with 
mud  in  order  to  measure  it  and  identify  it.  That  is  well  enough.  It 
was  held  in  another  case  that  where  the  officer  compelled  the  defendant 
to  put  his  foot  in  certain  tracks  that  were  discovered,  in  order  to  identify 
him,  that  was  wrong,  as  it  was  compelling  him  to  give  evidence  against 
himself,  and  evidence  of  that  kind  so  secured,  could  not  be  used.  We 
think  that  is  going  very  far;  it  is  rather  too  fine.  What  would  be  the 
consequence  if  such  evidence  should  be  entirely  excluded?  You  could 
not  compel  a  person  after  his  arrest  to  empty  his  pockets  and  disclose  a 
weapon,  when  the  most  vital  evidence  on  the  part  of  the  Government,  in 
a  homicide  case,  is  the  possession  of  the  deadly  weapon.  Could  you  not 
compel  him  to  open  his  pocket-book  and  exhibit  papers  that  might  be 
conclusive  in  the  case  of  a  forgery,  or  anything  of  that  sort?  We  think 
that  officers  having  a  prisoner  in  custody  have  a  right  to  acquire  informa- 
tion about  him,  even  by  force,  and  that,  for  example,  when  his  photo- 
graph is  taken  or  his  measurement  taken,  it  is  simply  the  act  of  the  offi- 
cers and  is  not  compelling  him  to  give  evidence  against  himself."^ 


COUNSELMAN  v.  HITCHCOCK   (1892). 

142  U.  S.  547,  564,  586,  12  Slip.  195. 

Counselman,  being  a  witness  before  the  grand  jury  in  attendance  upon 
a  District  Court  of  the  United  States,  refused  to  answer  questions  re- 
lating to  his  dealings  with  certain  railroad  corporations,  on  the 
480  ground  that  an  answer  might  tend  to  criminate  him.  The  grand 
jury  was  investigating  alleged  violations  by  these  corporations  of  the 
provisions  of  the  Interstate  Commerce  Act.  Having  been  committed 
for  contempt,  and  refused  his  discharge  upon  a  writ  of  habeas  corpus, 
Counselman  appealed  to  the  Supreme  Court.  The  statutes  upon  which 
the  right  to  compel  answers  rested  were  as  follows :  U.  S.  Rev.  St.  1878, 
§  860,  re-enacting  St.  Feb.  25,  1868,  c.  13 :  "No  pleading  of  a  party,  nor 
any  discovery  or  evidence  obtained  from  a  party  or  witness  by  means  of 
a  judicial  proceeding  in  this  or  any  foreign  country,  shall  be  given  in 
evidence,  or  in  any  manner  used  against  him  or  his  property  or  estate, 
in  any  court  of  the  United  States,  in  any  criminal  proceeding,  or  for  the 
enforcement  of  any  penalty  or  forfeiture,"  except  for  perjury  committed 
in  discovering  or  testifying  as  aforesaid;  St.  1887,  Feb.  i,  c.  104,  §9, 
24  Stat.  379:  In  any  action  against  a  common  carrier  for  damage  under 
this  statute,  the  privilege  is  not  to  excuse  from  testimony;  "but  such 
evidence  or  testimony  shall  not  be  used  against  such  person  on  the  trial 
of  any  criminal  proceeding;"  lb.  §12  (similar,  for  investigations  by 
the  Interstate  Commerce  Commission)  ;  St.  1891,  Feb.  10,  c.  128,  amend- 
ing St.  1887,  Feb.  I,  c.  104,  §12:  Upon  investigations  by  the  Inter- 
state Commerce  Commission,  where  the  aid  of  the  Circuit  Court  is  re- 


5 — Compare  the  authorities  cited  in  W.,  §  2265. 


No.  480.  SELF-CRIMINATION.  487 

quired  to  obtain  testimony,  "the  claim  that  any  such  testimony  or  evi- 
dence may  tend  to  criminate  the  person  giving  such  evidence  shall  not 
excuse  such  witness  from  testifying;  but  such  evidence  or  testimony 
shall  not  be  used  against  such  person  on  the  trial  of  any  criminal  pro- 
ceeding". 

Blatchford,  J.  (for  the  Court)  :  "It  is  an  ancient  principle  of  the  law 
of  evidence,  that  a  witness  shall  not  be  compelled,  in  any  proceeding, 
to  make  disclosures  or  to  give  testimony  which  will  tend  to  crimi- 
nate him  or  subject  him  to  fines,  penalties,  or  forfeitures.  ...  It  remains 
to  consider  whether  §  860  of  the  Revised  Statutes  removes  the  protection 
of  the  constitutional  privilege  of  Counselman.  .  .  .  Any  evidence  which 
might  have  been  obtained  from  Counselman  by  means  of  his  examina- 
tion before  the  grand  jury  could  not  be  given  in  evidence  or  used  against 
him  or  his  property  in  any  Court  of  the  United  States,  in  any  criminal 
proceeding,  or  for  the  enforcement  of  any  penalty  or  forfeiture.  This, 
of  course,  protected  him  against  the  use  of  his  testimony  against  him  or 
his  property  in  any  prosecution  against  him  or  his  property,  in  any 
criminal  proceeding,  in  a  court  of  the  United  States.  But  it  had  only 
that  effect.  It  could  not,  and  would  not,  prevent  the  use  of  his  testimony 
to  search  out  other  testimony  to  be  used  in  evidence  against  him  or  his 
property,  in  a  criminal  proceeding  in  such  court.  It  could  not  prevent 
the  obtaining  and  the  use  of  witnesses  and  evidence  which  should  be 
attributable  directly  to  the  testimony  he  might  give  under  compulsion, 
and  on  which  he  might  be  convicted,  when  otherwise,  and  if  he  had 
refused  to  answer,  he  could  not  possibly  have  been  convicted.  The  con- 
sititutional  provision  distinctly  declares  that  a  person  shall  not  'be  com- 
pelled in  any  criminal  case  to  be  a  witness  against  himself;'  and  the 
protection  of  §  860  is  not  coextensive  with  the  constitutional  provision. 
Legislation  cannot  detract  from  the  privilege  afforded  by  the  Constitution. 
We  are  clearly  of  opinion  that  no  statute  which  leaves  the  party  or  wit- 
ness subject  to  prosecution  after  he  answers  the  criminating  question 
put  to  him,  can  have  the  effect  of  supplanting  the  privilege  conferred 
by  the  Constitution  of  the  United  States.  Section  860  of  the  Revised 
Statutes  does  not  supply  a  complete  protection  from  all  the  perils  against 
which  the  constitutional  prohibition  was  designed  to  guard,  and  is  not 
a  full  substitute  for  that  prohibition.  In  view  of  the  constitutional  pro- 
vision, a  statutory  enactment,  to  be  valid,  must  afford  absolute  immunity 
against  future  prosecution  for"  the  offence  to  which  the  question  relates.^ 
,  .  .  Section  860,  moreover,  affords  no  protection  against  that  use  of 
compelled  testimony  which  consists  in  gaining  therefrom  a  knowledge 
of  the  details  of  a  crime,  and  of  sources  of  information  which  may  sup- 
ply other  means  of  convicting  the  witness  or  party." 

i—Smith,  J.,  in   State  v.   Noivcll,    58   N.  ...      The    witness,    regarded   in    law   as 

H.    314    (1878):      "The   legal   protection   of  innocent,   if   prosecuted   for   a  crime  which 

the    witness    against    prosecution    for   crime  he    has    been    compelled    by   statute   to   dis- 

disclosed    by   him    is   in    law    equivalent    to  close,   will   stand  as  well  as  other   innocent 

his  legal   innocence  of  the  crime  disclosed.  persons;     and  it  was  not  the  design  of  the 


488  PRIVILEGED   TOPICS.  No.  481. 


STATE  V.  QUARLES  (1853). 

IS  Ark.  J07. 

Scott,  J. :  "The  defendant,  having  been  indicted,  under  the  8th  Sec- 
tion of  the  Gaming  Act,  for  betting  money  on  a  game  of  chance  called 
Pocre,  interposed  the  plea  of  not  guilty,  in  which  the  State  joined, 
^^^  which  was  submitted  to  a  jury.  The  prosecuting  attorney  then, 
with  leave  of  the  court,  entered  a  nolle  prosequi  as  to  one  F.  L.  Neal, 
against  whom  a  like  prosecution  was  pending;  and  having  had  him 
sworn  as  a  witness  on  behalf  of  the  State,  and  informing  him  that  the 
nolle  prosequi  as  to  him  had  been  entered,  and  that  no  indictment, 
for  any  similar  offence,  would  be  thereafter  preferred  against  him  on 
a  charge  of  its  having  been  committed  prior  to  that  day,  asked  him  the 
following  question,  to-wit:  'Have  you  seen  the  defendant,  Hamilton  G. 
Quarles,  bet  money  with  any  person  or  persons  at  a  certain  game  of 
chance  played  with  cards,  called  Pocre,  in  the  county  of  Union,  State 
aforesaid,  within  twelve  months  next  before  the  i6th  day  of  April,  A.  D. 
185 1?'  This  question,  the  witness  refused  to  answer,  'for  fear  that  he 
would  thereby  incriminate  himself,'  as  he  alleged;  and  the  Court  refus- 
ing to  compel  him  to  do  so,  as  moved  on  the  part  of  the  State,  the  point 
of  law  was  saved  by  bill  of  exceptions.  No  further  evidence  having 
been  offered,  the  jury  found  for  the  defendant,  and  the  State  appealed. 
...  On  the  part  of  the  State,  it  is  insisted  that  the  witness  ought  to 
have  been  compelled  to  answer  the  question,  because,  under  the  law, 
as  altered  by  our  statute,  it  was  not  possible  that  the  answer  could  have 
had  any  tendency  to  criminate  him,,  and  as  it  related  to  matter  that  was 
relevant  and  material  to  the  issue,  it  was  not  his  privilege  to  refuse, 
because  of  any  tendency  of  the  answer  to  degrade  his  character.  On 
the  other  side,  it  is  contended  that  our  statute  has  not  materially  changed 
the  common  law  rule  on  this  subject;  and,  moreover,  that  it  is  beyond 
the  competent  power  of  the  Legislature  to  enact  a  law  under  which  a 
witness  could  be  compelled  to  answer  a  question  which  he  might  think 
would  incriminate  himself.  The  provision  of  the  statute  in  question,  is 
in  the  following  words,  to-wit:  Tn  all  cases  where  two  or  more  persons 
are  jointly  or  otherwise  concerned  in  the  commission  of  any  crime  or 
misdemeanor,  either  of  such  persons  may  be  sworn  as  a  witness  in  rela- 
tion to  such  crime  or  misdemeanor,  but  the  testimony  given  by  such  wit- 
ness shall  in  no  instance  be  used  against  him  in  any  criminal  prosecu- 
tion for  the  same  offence.'  ...  It  is  necessary,  then,  that  we  shall  dis- 
cover, if  we  can,  the  true  nature  of  this  constitutional  privilege  of  the 
witness,  before  we  construe  these  regulations  of  the  Legislature,  which 
concern  it.  .  .  . 

common-law    maxim,    affirmed    by    the    Bill  lawful  accusation  against  his  principal,  and 

of  Rights,  that  he  should  stand  any  better.  thus     make    a     perfect    answer     in     bar    or 

He  could   plead   and   show  that  he  abatement    of  the   prosecution   against   him- 

had    disclosed    the    same    offence    upon    a  self." 


No.  481.  SELF-CRIMINATION.  489 

"The  privilege  in  question,  in  its  greatest  scope,  as  allowed  by  the 
common  law — and  no  one,  be  he  witness  or  accused,  can  pretend  to  claim 
it  beyond  its  scope  at  the  common  law — never  did  contemplate  that  the 
witness  might  not  be  proved  guilty  of  the  very  crime  about  which  he 
may  be  called  to  testify;  but  only  that  the  witness  should  not  be  com- 
pelled to  produce  the  evidence  to  prove  himself  guilty  of  that  crime.  His 
privilege,  therefore,  was  not  an  exemption  from  the  consequences  of  a 
crime  that  he  might  have  committed ;  but  only  an  exemption  from  the 
necessity  of  himself  producing  the  evidence  to  establish  his  own  crime. 
...  So  long  as  it  might  be  lawful  to  produce  in  evidence  against  an 
accused  party  whatever  he  might  before  have  voluntarily  said  as  a  wit- 
ness on  a  prosecution  against  another,  there  were  no  means  by  which 
the  privilege  could  be  made  available  short  of  a  claim  by  the  witness  to 
be  silent;  and  as  that  was  the  rule  of  the  common  law,  this  was  the  com- 
mon-law mode  of  making  the  privilege  available.  And  that  silence  was 
but  a  mode  of  making  the  privilege  available,  and  was  not  of  the  essence 
of  the  privilege  itself,  is  conclusively  proven  by  all  that  current  of  en- 
lightened authority,  to  which  we  yield  our  fullest  assent,  which  hold  that 
the  privilege  has  ceased  when  the  crime  has  been  pardoned,  when  the 
witness  has  been  tried  and  acquitted,  or  is  adjudged  guilty,  or  when  the 
prosecution,  to  which  he  was  exposed,  has  been  barred  by  lapse  of  time. 
.  .  .  When  this  rule  of  the  common  law  should  have  been  so  changed  by 
legislative  enactment,  as  to  make  unnecessary  any  appeal  whatever  on 
the  part  of  the  witness  to  his  constitutional  guarantee — as  by  regula- 
tions securing  to  him  otherwise  and  effectually  all  that  was  guaranteed 
by  the  Bill  of  Rights — he  could  have  no  greater  reason  to  complain  than 
he  would  have  had  had  the  law  remained  unchanged,  and  under  its  oper- 
ation he  had  never  had  any  occasion  to  take  shelter  under  the  guarantee. 
And  in  such  case,  there  would  be  no  more  ground  upon  w'hich  to  sup- 
pose a  want  of  competent  power  in  the  Legislature  to  make  such  regu- 
lations than  there  would  be  in  case  that  body  were  to  repeal  the  statute 
of  gaming,  and  by  this  means  deprive  the  gambler  of  his  constitutional 
privilege  to  be  accused  and  tried  for  a  criminal  offence,  which  has  no 
longer  existence.  In  either  case,  all  that  could  be  said  would  be,  as  to 
the  gambler,  that  Courts  could  not  indulge  him  in  the  luxury  of  a  con- 
stitutional accusation  and  trial,  wherein  he  could  display  his  skill  in 
breaking  through  the  meshes  of  the  law,  for  the  reason  that  he  had 
committed  no  offence  then  known  to  the  law.  And  as  to  the  witness, 
that  he  could  not  be  indulged  with  the  arm  of  the  law  to  prevent  his 
being  ravished  of  matters  tending  to  a  crimination  of  himself,  for  the 
reason  that  nothing  that  could  be  wormed  out  of  him  could  possibly  have 
that  effect.  In  a  word,  in  neither  case,  there  being  no  invasion  of  right 
or  privilege,  could  there  be  any  place  for  vindication ;  and  there  being 
no  encroachment  upon  any  right  retained  by  the  citizen,  and  no  pretence 
of  any  transgression  of  any  of  the  higher  powers  delegated  to  the  Legis- 
lature, such  acts  would  be  clearly  without  the  pale  of  prohibition  and 
within  the  scope  of  authority.  .  .  . 


490  PRIVILEGED   TOPICS.  IS'O.   481. 

"But  the  Legislature  has  so  changed  the  common-iaw  rule,  by  the 
enactment  in  question,  in  the  substitution  of  a  rule  that  the  testimony, 
required  to  be  given  by  the  act,  shall  never  be  used  against  the  witness 
for  the  purpose  of  procuring  his  conviction  for  the  crime  or  misdemeanor 
to  w^hich  it  relates,  that  it  is  no  longer  necessary  for  him  to  claim  his 
privilege  as  to  such  testimony,  in  order  to  prevent  its  being  afterwards 
used  against  him.  And  the  only  question  that  can  possibly  arise  under 
the  present  state  of  the  law,  as  applicable  to  the  case  now  before  us,  is  as 
to  whether  our  statutory  regulations  afford  sufficient  protection  to  the  wit- 
ness, responsive  to  this  new  rule  and  to  his  constitutional  guarantee 
against  compulsory  self-accusation.  ...  In  any  case  where  more  than  or- 
dinary precautions  may  be  thought  expedient  or  necessary,  the  powers  of 
the  Circuit  Court  are  ample  for  the  complete  preservation  of  every  item  of 
evidence  that  might  be  produced.  There  can  then  be  no  ground  for  appre- 
hension for  the  safety  of  the  witness  from  this  source.  Nor  can  there  be 
any  greater  cause  for  apprehension  from  any  supposed  possibility  or 
probability  that  the  true  privilege  of  the  witness  may  be  invaded  under 
the  operation  of  the  new  rule,  by  the  practical  effect  of  his  evidence, 
either  direct  or  indirect,  in  opening  up  to  the  State,  avenues  of  light 
leading  to  evidences  of  other  crimes  or  misdemeanors,  upon  which  prose- 
cutions might  be  afterwards  founded  against  the  witnesses,  that  might 
otherwise  remain  closed  and  unsuggested.  Because,  when  the  course  of 
examination  would  lead  to  any  inquiry  as  to  any  matter  materially  con- 
nected with  any  crime  or  other  misdemeanor  than  that  which  was  the 
subject  of  direct  inquiry  before  the  court, — as,  when  such  matter  might 
be  indispensable  for  the  elucidation  of  some  material  matter  already 
produced  in  evidence  by  the  witness  and  directly  involved  in  the  issue — 
the  witness  could  claim  his  privilege  as  to  such  matter  as  fully  as  if  he 
had  been  inquired  of  in  chief  touching  such  other  crime  or  misdemeanor. 
.  ,  .  And  when  the  effect  of  the  witness'  testimony  would  not  substan- 
tially amount  to  the  furnishing  of  an  item  in  a  consecutive  series  of 
proofs  tending  to  his  conviction  for  another  crime  or  misdemeanor,  it 
would  be  so  remote,  contingent,  and  intangible,  as  scarcely  to  be  of 
capacity  to  be  considered  of  as  legitimately  resulting  from  his  testimony 
in  legal  contemplation,  in  any  sense  to  invade  his  true  privilege.  At  any 
rate,  we  can  safely  say,  it  would  not  prima  facie  be  so.  And  the  argu- 
ment to  maintain  the  contrary,  can  only  be  supported  by  assuming  that 
the  privilege  is  absolute  and  unqualified,  which  is  not  only  legally  untrue 
as  to  it,  but  untrue  as  to  every  other  right  and  privilege  of  the  citizen, 
because  they  are  all  but  component  elem.ents,  not  of  natural  liberty,  but 
of  civil  liberty.  And  the  error  of  the  hypothesis  will  abundantly  appear 
in  the  absurdities  evolved  in  carrying  out,  to  its  inevitable  result,  any 
given  right  or  privilege  of  the  citizen  when  so  based.  If,  for  instance, 
it  were  broadly  admitted  that  the  privilege  in  question  was  so  based,  and 
hence  would  be  invaded  whenever  the  incidental  effect  of  the  testimony 
of  the  witness  might  in  any  degree  be  suggestive  of  sources  of  light  that, 
when  pursued,  might  lead  to  evidences  upon  which  prosecutions  might  aft- 


Mo,  4«:^.  SELF-CRIMINATION.  491 

erwards  be  founded  against  the  witness  for  other  crimes  or  misdemeanors : 
and  also,  (as  contended  for  on  the  other  side,)  that  the  witness  is  to  be  the 
sole  judge  of  the  occasion  for  the  exercise  of  his  privilege,  it  would  be  diffi- 
cult to  drive  the  machinery  of  government  forward  in  its  ordinary 
course.  A  Court,  for  instance,  might  then  lawfully  refuse  to  try  a  cause, 
lest  its  investigation,  by  the  instrumentality  of  the  jury  and  witnesses, 
might  be  suggestive  of  inquiries  that  might  ultimately  lead  to  evidence 
upon  which  a  criminal  prosecution  might  be  afterwards  founded  against 
the  presiding  judge.  And  for  a  like  reason,  the  Executive  might  feel 
lawfully  authorized  to  withhold  his  ordinary  communications  from  the 
Legislature ;  and  even  that  body  might  lawfully  decline  to  perform  its 
ordinary  duties  upon  the  same  ground — especially  if  the  true  privilege 
not  only  authorizes  the  citizen  to  withhold  criminating  matter,  but  also 
any  matter  that  might  have  a  tendency  to  degrade — because,  the  very 
remedies  for  the  future  would  often  be  suggestive  of  the  errors  of  the 
past,  and  these  might  not  all  be  of  an  excusable  cast.  But  to  all  objec- 
tions of  this  class,  it  is  a  conclusive  answer  to  say  that,  if,  beyond  rea- 
sonable foresight,  any  such  cases  should  arise  under  the  operation  of  our 
statute  rule,  as  M^ould  seem  to  be  clearly  within  its  equity,  although  not 
embraced  within  its  strict  letter,  all  such  special  and  unlooked-for  cases 
would  be  as  fully  within  its  provisions,  as  if  embraced  by  its  terms,  and 
witnesses  in  such  extreme  cases  would  doubtless  obtain  full  protection 
from  the  Courts." 


BROWN  V.  WALKER  (1896). 

161  U.  S.  591,  16  Sup.  644. 

Appeal  from  Brown  v.  Walker,  70  Fed.  46  (1895),  against  a  ruling 
of  Buffington,  J.,  holding  to  be  effectual  the  following  statute,  which  had 
been  passed  in  consequence  of  the  decision  in  Counsdman  v. 
*^2  Hitchcock,  supra,  No.  480:  St.  1893,  Feb.  11,  c.  83,  27  Stat.  443: 
"No  person  shall  be  excused  from  attending  and  testifying  or  from  pro- 
ducing books,  papers,  tariffs,  contracts,  agreements  and  documents  be- 
fore the  Interstate  Commerce  Commission,  or  in  obedience  to  the  sub- 
poena of  the  commission,  whether  such  subpoena  be  signed  or  issued  by 
one  or  more  commissioners  or  in  any  cause  or  proceeding,  criminal  or 
otherwise,  based  upon  or  growing  out  of  any  alleged  violation  of  the 
act  of  Congress,  entitled  'an  act  to  regulate  commerce,'  approved  Feb.  4. 
1887,  or  of  any  amendment  thereof,  on  the  ground  or  for  the  reason  that 
the  testimony  or  evidence,  documentary  or  otherwise,  required  of  him 
may  tend  to  criminate  him  or  subject  him  to  a  penalty  or  forfeiture.  But 
no  person  shall  be  prosecuted  or  subjected  to  any  penalty  or  forfeiture 
for  or  on  account  of  any  transaction,  matter  or  thing  concerning  which 
he  may  testify  or  produce  evidence,  documentary  or  otherwise,  before 
said  commission,  or  in  obedience  to  its  subpoena,  or  the  subpoena  of  either 
of  them,    or  in  any  such  case  or  proceeding:  Provided,  that  no  person 


492  PRIVILEGED  TOPICS.  No.  482. 

so  testifying  shall  be  exempt  from  prosecution  and  punishment  for  per- 
jury committed  in  so  testifying."  The  petitioner  had  been  sub- 
poenaed as  a  witness  before  the  grand  jury,  at  a  term  of  the 
District  Court  for  the  Western  District  of  Pennsylvania,  to  testify 
in  relation  to  a  charge  then  under  investigation  by  that  body  against 
certain  officers  and  agents  of  the  Allegheny  Valley  Railway  Com- 
pany, for  an  alleged  violation  of  the  Interstate  Commerce  Act. 
Brown,  the  appellant,  appeared  for  examination,  in  response  to  the 
subpoena,  and  was  sworn.  After  testifying  that  he  was  auditor  of 
the  railway  company,  and  that  it  was  his  duty  to  audit  the  accounts  of 
the  various  officers  of  the  company,  as  well  as  the  accounts  of  the  freight 
department  of  such  company  during  the  years  1894  and  1895,  he  was 
asked  the  question :  "Do  you  know  whether  or  not  the  Allegheny  Valley 
Railway  Company  transported  for  the  Union  Coal  Company,  during  the 
months  of  July,  August  and  September,  1894,  coal  from  any  point  on  the 
Low  Grade  division  of  said  railroad  company  to  Buffalo  at  a  less  rate 
than  the  established  rates  in  force  between  the  terminal  points  at  the 
time  of  such  transportation?"  To  this  question  he  answered:  "That 
question,  with  all  respect  to  the  grand  jury  and  yourself,  I  must  decline 
to  answer  for  the  reason  that  my  answer  would  tend  to  accuse  and  in- 
criminate myself."  The  grand  jury  reported  these  questions  and  an- 
swers to  the  Court,  and  prayed  for  such  order  as  to  the  Court  might 
seem  meet  and  proper.  Upon  the  presentation  of  this  report.  Brown 
was  ordered  to  appear  and  show  cause  why  he  should  not  answer  the 
said  questions  or  be  adjudged  in  contempt;  and  upon  the  hearing  of  the 
rule  to  show  cause,  it  was  found  that  his  excuses  were  insufficient,  and 
he  was  directed  to  appear  and  answer  the  questions,  which  he  declined 
to  do.  Whereupon  he  was  adjudged  to  be  in  contempt  and  ordered  to 
pay  a  fine  of  five  dollars,  and  to  be  taken  into  custody  until  he  should 
have  answered  the  questions.  The  testimony  was  held  to  be  compellable, 
and  the  ruling  below  affirmed,  by  a  majority  of  the  Court,  Fuller,  C.  J., 
Harlan,  Brewer,  Peckham,  and  Brown,  JJ.  ;  dissenting  opinions  be- 
ing filed  by  Field,  J.,  and  by  Shiras,  J.,  for  Gray  and  White,  JJ.,  also. 
The  following  extracts  exhibit  the  various  reasonings  accepted: 

Shiras,  J.,  dissenting:  "All  that  can  be  said  is  that  the  witness  is 
not  protected  by  the  provision  in  question  from  being  prosecuted,  but 
that  he  has  been  furnished  with  a  good  plea  to  the  indictment,  which  will 
secure  his  acquittal.  But  is  that  true?  Not  unless  the  plea  is  sus- 
tained by  competent  evidence.  His  condition,  then,  is  that  he  has  been 
prosecuted,  been  compelled  presumably,  to  furnish  bail,  and  put  to  the 
trouble  and  expense  of  employing  counsel  and  furnishing  the  evidence 
to  make  good  his  plea.  .  .  .  Nor  is  it  a  matter  of  perfect  assurance  that 
a  person  who  has  compulsorily  testified,  before  the  commission,  grand 
jury,  or  court,  will  be  able,  if  subsequently  indicted  for  some  matter  or 
thing  concerning  which  he  testified,  to  procure  the  evidence  that  will  be 
necessary  to  maintain  his  plea.  No  provision  is  made  in  the  law  itself 
for  the  preservation  of  the  evidence.    Witnesses  may  die  or  become  in- 


ISO.  482.  SELF-CRIMINATION.  493 

sane,  and  papers  and  records  may  be  destroyed  by  accident  or  design. 
.  .  .  Another  danger  to  which  the  witness  is  subjected  by  the  withdrawal 
of  the  constitutional  safeguard  is  that  of  a  prosecution  in  the  State 
courts.  The  same  act  or  transaction  which  may  be  a  violation  of  the 
interstate  commerce  act  may  also  be  an  offense  against  a  State  law. 
Thus,  in  the  present  case,  the  inquiry  was  as  to  supposed  rebates  on 
freight  charges.  Such  payments  would  have  been  in  disregard  of  the 
Federal  statute;  but  a  full  disclosure  of  all  the  attendant  facts  (and,  if 
he  testify  at  all,  he  must  answer  fully)  might  disclose  that  the  witness 
had  been  guilty  of  embezzling  the  moneys  intrusted  to  him  for  that  pur- 
pose, or  it  might  have  been  disclosed  that  he  had  made  false  entries  in 
the  books  of  the  State  corporation  in  whose  employ  he  was  acting.  These 
acts  would  be  crimes  against  the  State,  for  which  he  might  be  indicted 
and  punished,  and  he  may  have  furnished,  by  his  testimony  in  the  Fed- 
eral court  or  before  the  commission,  the  very  facts,  or,  at  least,  clues 
thereto,  which  led  to  his  prosecution." 

Field,  J.,  dissenting:  "It  is  contended,  indeed,  that  it  was  not  the  ob- 
ject of  the  constitutional  safeguard  to  protect  the  witness  against  infamy 
and  disgrace.  It  is  urged  that  its  sole  purpose  was  to  protect  him  against 
incriminating  testimony  with  reference  to  the  offense  under  prosecution. 
But  we  do  not  agree  that  such  limited  protection  was  all  that  was  se- 
cured. As  stated  by  counsel  of  the  appellant,  'it  is  entirely  possible,  and 
certainly  not  impossible,  that  the  framers  of  the  Constitution  reasoned 
that,  in  bestowing  upon  witnesses  in  criminal  cases  the  privilege  of 
silence  when  in  danger  of  self-incrimination,  they  would  at  the  same 
time  save  him  in  all  such  cases  from  the  shame  and  infamy  of  confessing 
disgraceful  crimes,  and  thus  preserve  to  him  some  measure  of  self- 
respect.  ...  It  is  true,  as  counsel  observes,  that  both  the  safeguard  of 
the  Constitution  and  the  common-law  rule  spring  alike  from  that  senti- 
ment of  personal  self-respect,  liberty,  independence,  and  dignity  which 
has  inhabited  the  breasts  of  English-speaking  peoples  for  centuries,  and 
to  save  which  they  have  always  been  ready  to  sacrifice  many  govern- 
mental facilities  and  conveniences.  In  scarcely  anything  has  that  senti- 
ment been  more  manifest  than  in  the  abhorrence  felt  at  the  legal  com- 
pulsion upon  witnesses  to  make  concessions  which  must  cover  the  wit- 
ness with  lasting  shame,  and  leave  him  degraded  both  in  his  own  eyes 
and  those  of  others.  Wliat  can  be  more  abliorent  .  .  .  ilmn  to  compel 
a  man  who  has  fought  his  way  from  obscurity  to  dignity  and  honor  to 
reveal  crimes  of  which  he  had  repented,  and  of  which  the  world  was 
ignorant? '  The  essential  and  inherent  cruelty  of  compelling  a  man  to 
expose  his  own  guilt  is  obvious  to  every  one,  and  needs  no  illustration, 
.  .  .  The  counsel  for  the  appellant  justly  observes  that  'the  proud  sense 
of  personal  independence  which  is  the  basis  of  the  most  valued  qualities 
of  a  free  citizen  is  sustained  and  cultivated  by  the  consciousness  that 
there  are  limits  which  even  the  State  cannot  pass  in  tearing  open  the 
secrets  of  his  bosom.'  " 

Brown,  J.,  for  the  majority  :  "  If  the  object  of  the  provision  be  to 


494  PRIVILEGED  TOPICS.  No.  482. 

secure  the  witness  against  a  criminal  prosecution,  which  might  be  aided 
directly  or  indirectly  by  his  disclosure,  then,  if  no  such  prosecution  be 
possible, — in  other  words,  if  his  testimony  operate  as  a  complete  pardon 
for  the  offense  to  which  it  relates, — a  statute  absolutely  securing  to  him 
such  immunity  from  prosecution  would  satisfy  the  demands  of  the  clause 
in  question.  ...  It  can  only  be  said,  in  general,  that  the  clause  should 
be  construed,  as  it  was  doubtless  designed,  to  effect  a  practical  and  benefi- 
cent purpose, — not  necessarily  to  protect  witnesses  against  every  pos- 
sible detriment  which  might  happen  to  them  from  their  testimony,  nor 
to  unduly  impede,  hinder,  or  obstruct  the  administration  of  criminal  jus- 
tice. .  .  .  The  same  answer  may  be  made  to  the  suggestion  that  the 
witness  is  imperfectly  protected  by  reason  of  the  fact  that  he  may  still 
be  prosecuted)  and  put  to  the  annoyance  and  expense  of  pleading  his  im- 
munity by  way  of  confession  and  avoidance.  This  is  a  detriment  which 
the  law  does  not  recognize.  There  is  a  possibility  that  any  citizen,  how- 
ever innocent,  may  be  subjected  to  a  civil  or  criminal  prosecution,  and 
put  to  the  expense  of  defending  himself;  but,  unless  such  prosecution 
be  malicious,  he  is  remediless,  except  so  far  as  a  recovery  of  costs  may 
partially  indemnify  him.  He  may  even  be  convicted  of  a  crime,  and 
suffer  imprisonment  or  other  punishment  before  his  innocence  is  discov- 
ered ;  but  that  gives  him  no  claim  to  indemnity  against  the  State,  or  even 
against  the  prosecutor,  if  the  action  of  the  latter  was  taken  in  good  faith, 
and  in  a  reasonable  belief  that  he  was  justified  in  so  doing.  .  .  .  [After 
arguing  that  Congress  has  power  to  enact  such  a  statutory  amnesty  to 
apply  in  State  courts,  and  that  the  statute  in  question  was  intended  as  a 
general  one :]  But,  even  granting  that  there  were  still  a  bare  possibility 
that,  by  disclosure,  he  might  be  subjected  to  the  criminal  laws  of  some 
other  sovereignty,  that,  as  Chief  Justice  Cockburn  said  in  Queen  v. 
Boyes,^  in  reply  to  the  argument  that  the  witness  was  not  protected  by  his 
pardon  against  an  impeachment  by  the  House  of  Commons,  is  not  a  real 
and  probable  danger,  with  reference  to  the  ordinary  operations  of  the  law 
in  the  ordinary  courts,  but  'a  danger  of  an  imaginary  and  unsubstantial 
character,  having  reference  to  some  extraordinary  and  barely  possible 
contingency,  so  improbable  that  no  reasonable  man  would  suffer  it  to  in- 
fluence his  conduct.'  Such  dangers  it  was  never  the  object  of  the  provi- 
sion to  obviate.  .  .  .  The  fact  that  the  testimony  may  tend  to  degrade  the 
witness  in  public  estimation  does  not  exempt  him  from  the  duty  of  dis- 
closure. A  person  who  commits  a  criminal  act  is  bound  to  contemplate 
the  consequences  of  exposure  to  his  good  name  and  reputation,  and  ought 
not  to  call  upon  the  courts  to  protect  that  which  he  has  himself  esteemed 
to  be  of  such  little  value.  The  safety  and  welfare  of  an  entire  community 
should  not  be  put  into  the  scale  against  the  reputation  of  a  self-confessed 
criminal,  who  ought  not,  either  in  justice  or  in  good  morals,  to  refuse  to 
disclose  that  which  may  be  of  great  public  utility,  in  order  that  his  neigh- 
bors may  think  well  of  him.    The  design  of  the  constitutional  privilege  is 

I— I  B.  &  S.  311.  32s   (1861). 


No.  483.  SELF-CRIMINATION.  495 

not  to  aid  the  witness  in  vindicating  his  character,  but  to  protect  him 
against  being  compelled  to  furnish  evidence  to  convict  him  of  a  criminal 
charge.  If  he  secure  legal  immunity  from  prosecution,  the  possible  im- 
pairment of  his  good  name  is  a  penalty  which  it  is  reasonable  he  should 
be  compelled  to  pay  for  the  common  good.  If  it  be  once  conceded  that 
the  fact  that  his  testimony  may  tend  to  bring  the  witness  into  disrepute, 
though  not  to  incriminate  him,  does  not  entitle  him  to  the  privilege  of 
silence,  it  necessarily  follows  that,  if  it  also  tends  to  incriminate,  but  at 
the  same  time  operates  as  a  pardon  for  the  offense,  the  fact  that  the 
disgrace  remains  no  more  entitles  him  to  immunity  in  this  case  than  in 
the  other.  .  .  .  The  danger  of  extending  the  principle  announced  in  Coun- 
selman  v.  Hitchcock  is  that  the  privilege  may  be  put  forward  for  a  senti- 
mental reason,  or  for  a  purely  fanciful  protection  of  the  witness  against 
an  imaginary  danger,  and  for  the  real  purpose  of  securing  immunity  to 
some  third  person,  who  is  interested  in  concealing  the  facts  to  which 
he  would  testify.  Every  good  citizen  is  bound  to  aid  in  the  enforcement 
of  the  law,  and  has  no  right  to  permit  himself,  under  the  pretext  of  shield- 
ing his  own  good  name,  to  be  made  the  tool  of  others,  who  are  desirous 
of  seeking  shelter  behind  his  privilege."^ 


b.     Claim  and  Waiver  of  the  Privilege. 

BEMBRIDGE'S  TRIAL  (1783). 

22  How.  St.  Tr.  14^. 

Mr.  Bearcroft,  arguing  for  the  defence:  "It  is  true  he  was  examined 
in  a  mode  of  inquiry  in  which  it  was  not  improper,  perhaps,  to  examine 
him ;  but  it  cannot  be  doubted  that  the  persons  who  did  examine 
him  saw  that  the  questions  that  they  put  upon  that  occasion  tended 
to  criminate  the  person  under  that  examination.  What  does  your  lord- 
ship do  in  that  situation?  What  does  every  judge  do,  even  down  to  the 
lowest  justice  of  the  peace,  even  to  committee-men  upon  elections,  when- 
ever a  question  of  that  sort  is  asked  of  a  witness?  'Stop;  understand 
that  you  are  at  your  own  discretion  whether  you  will  answer  that  ques- 
tion or  not;  you  need  not  accuse  yourself.'  The  law  of  England  is  that 
no  man  is  bound  to  accuse  himself;  and  the  man  who  administers  that 
law  best  always  takes  care  to  give  that  caution."^ 

2 — Compare  the  authorities  cited   in   W.,  to   his    own    discretion";      1854,    Parke.    B., 

§§  2281,    2282.  in  Atfy-Gcn'l  v.  Radloff,    10   Fxch.  84,  88: 

3 — 1809,  L.   C.   Eldon,  in  Lloyd  v.  Pass-  "I  think  that  a  witness  ought  to  make  the 

ingltam,    16    Ves.    Jr.    59,    64:      "The   prac-  ohjection    himself";     1876,    Mayo   v.    Mayo, 

ticc   formerly   was  that   the  judge   told   the  iig    Mass.    290,    292:     "It    is    witliin    the 

witness   he   was   not    bound    to    answer    the  discretion    of    the    Court,    and     the     usual 

question;"    1809,    L.    C.    Eldon    in    Paxton  practice,  to  advise  a  witness  that  he  is  not 

V.   Douglas,    16   Ves.   Jr.    239,   242:      "Now,  bound    to   criminate    himself,    where   it    ap- 

it   appears   to   be    understood    that    he    may  pears    necessary    to    protect    the    rights    of 

waive    the    objection     and    proceed     if    he  the    witness."       Compare      the      authorities 

thinks    proper;     and    in    general    it    is    left  cited    in    W.,    §   2269. 


496 


PRIVILEGED   TOPICS. 


No.  484. 


CLOYES  V.  THAYER    (1842). 
3  Hill  N.  y.  564,  566. 

Action  on  a  promissory  note  bearing  date  November  27th,  1835, 
payable  to  bearer,  made  by  the  defendants  and  transferred  to  the  plain- 
tiff by  Isaac  Hove}^  the  payee.  The  defendants  pleaded  the  gen- 
eral  issue,  and  gave  notice,  in  general  terms,  that  they  vi^ould  prove 
the  note  to  have  been  given  to  Hovey  upon  a  usurious  consideration. 
.  .  .  The  defendants'  counsel  called  Isaac  Hovey  as  a  w^itness,  and  asked 
him  if  he  w^as  the  original  holder  of  the  note.  The  witness  declined 
answering  the  question,  for  fear,  as  he  said,  that  his  reply  might  form 
a  link  in  the  chain  of  evidence  to  convict  him  of  a  criminal  offence.  The 
circuit  judge  required  the  witness  to  answer  the  question  and  to  testify 
in  relation  to  the  receipt  by  him  of  the  alleged  usury;  giving 
as  the  reason  for  his  decision  that  it  was  not  an  offence  to  take  usury 
when  the  note  in  question  was  executed.  The  plaintiff's  counsel  excepted. 
The  jury  rendered  a  verdict  in  favor  of  the  defendants;  and  the  plain- 
tiff now  moved  for  a  new  trial  on  a  bill  of  exceptions. 

Nelson,  C.  J. :  "The  court  erred  in  compelling  the  payee  of  the  note 
to  answer  questions  tending  to  criminate  himself.  It  was  expressly  held 
in  Burns  v.  Kempshall  (24  Wend.  360)-,  that  the  answer  in  a  like  case 
might  tend  to  subject  him  either  to  a  penalty  or  to  an  indictment  for  a 
misdemeanor. 

"But  the  error  is  not  available  to  the  plaintiff.  The  privilege  belongs 
exclusively  to  the  witness,  who  may  take  advantage  of  it  or  not  at  his 
pleasure.  The  party  to  the  suit  cannot  object.  He  has  no  right  to  insist 
upon  the  privilege  and  require  thd  court  to  exclude  the  evidence  on  that 
ground.  The  witness  may  waive  it  and  testify,  in  spite  of  any  objec- 
tion coming  from  the  party  or  his  counsel.  If  ordered  to  testify  in  a 
case  where  he  is  privileged,  it  is  a  matter  exclusively  between  the  Court 
and  the  witness.  The  latter  may  stand  out  and  be  committed  for  con- 
tempt, or  he  may  submit ;  but  the  party  has  no  right  to  interfere  or  com- 
plain of  the  error.  It  would  be  otherwise  if  the  Court  allowed  the  privi- 
lege in  a  case  where  the  witness  had  not  brought  himself  within  the 
rule,  as  the  [cross-examining]  party  would  then  be  improperly  deprived 
of  his  testimony."* 


REGINA  V.  GARBETT    (1847). 

2  C.  &  K.  474,  4Q2,  2  Cox  Cr.  448,  i  Den.  Cr.  C.  2^6. 

Forgery.    The  first  count  of  the  indictment  charged  the  prisoner  with 

forging  a  bill  of  exchange  for  £50,  with  intent  to  defraud  William  Booth. 

...  In  the  course  of  the  trial,  S.  Martin,  for  the  prosecution,  pro- 

*^**       posed  to  give  in  evidence  the  examination  of  the  prisoner  on  the 

trial  of  the  civil  action  of  Blagden  v.   Booth,  at  the  Kingston   Spring 


1 — Compare   the   authorities  cited   in   W.,   §  2270;     and   the    opinion   in   Doe   v.    Date, 
^e,    No.   450. 


No.  485.  SELF-CRIMINATION.  497 

Assizes,  1847.  •  •  •  O"  that  trial,  the  prisoner  was  called  as  a  witness 
for  the  defendant ;  and,  in  his  examination  in  chief,  he  had  said :  "This 
is  my  signature  to  the  bill  as  drawer.  The  bill  is  made  payable  to  my 
order.  The  acceptance  was  on  it  when  I  handed  it  to  Mr.  Phillips  (the 
second  endorser)."  His  cross-examination  was  as  follows,  as  was  proved 
by  Mr.  Corfield,  the  short-hand  writer,  by  his  short-hand  notes : — 

The  stamp  was  never  out  of  my  possession  till  it  -.vas  handed  to  Mr. 
Phillips. 

Had  you   Mr.   Booth's  authority  to  accept  it? — I  had  not. 

Where  did  you  get  the  stamp? — I  purchased  it  at  a  shop  in  London, 
and  from  that  time  the  stamp  has  never  been  out  of  my  possession.  I 
never   received   a  penny   for   it. 

Never  mind  what  you  received  for  it, — when  was  the  "William  Booth" 
put    upon   it? — Between   the   Friday   and   the    Sunday. 

What  Friday  and  Sunday? — I  believe  it  was  between  the  last  Friday  and 
the    last    Sunday    in    November. 

After  the  2ist? — Certainly  after  the  21st. 

After   the  21st   of   November,   46? — Certainly. 

Did  you  communicate  with  Mr.  Booth  on  the  subject? — Not  in  any  way. 

Have  you  never  done  so? — Yes,  I  believe  last  Saturday  week  I  saw 
Mr.  Booth. 

Lord  Denman. — Was  that  the  first  time? — The  first  time,  my  Lord. 

Mr.  Chambers. — Why!  did  he  not  write  you  a  letter? — Never,  I  never 
heard  of  his  writing  me  a  letter  until   I  came  into  this   Court  by  accident. 

Until  you  came  by  accident, — what  do  you  mean? — I  came  into  Court 
in  pursuance  of  a  subpcena  served  three  hours  ago. 

Who  served  you  three  hours  ago? — A  gentleman. 

Where  were  you  three  hours  ago? — At  my  office  in  King  William  Street, 
in  the  City. 

Who  is  the  man, — do  you  know  him? — I  do  not,  but  I  believe  he  is  a 
clerk  to  Mr.   Stuart. 

Where  is  your  office  do  you  say? — My  place  of  business  is  in  King  Wil- 
liam Street. 

What   are  you? — An   attorney  and   solicitor. 

Did  you  know  what  you  came  here  to  prove? — I  did  not  until  I  came 
into  the  box. 

Do  you  know  what  you  are  attempting  to  prove? — I  do. 

Do  you   mean  to  say   it  is  a  forgery? — It  is  not  his  handwriting. 

Not  in  his  handwriting.  Who  accepted  it  then? — I  am  in  the  hands 
of  the  Court. 

Lord  Denman. — It  must  be  answered. 

The  Witness. — I  state,  my  Lord,  that  I  filled  the  bill  up  at  Mr.  Pliillips's 
request  in  his  own  drawing-room,  and  handed  it  to  him,  and  have  never 
received  a  penny  for  it. 

Mr.  Chambers. — I  ask  you  who  did  that?  (pointing  to  ihe  bill.) — Not  Mr. 
Booth. 

Did  Mr.  Phillips?— No. 

Who  was  present  when  the  bill  was  filled  up?— Mr.   Phillips  alone. 

Were  there  only  you  two  present? — Mr.  Booth  was  not  present  when 
"William  Booth"  was  written.  William  Booth  had  been  written  before 
T   filled   it   up   in    Mr.    Phillips's   drawing-room. 

Who  was  present  when  "William  Booth"  was  written? — I  won't  say — 
only  myself. 

Was  any  one  else? — I  cannot  say. 

I  ask  you  to  tell  me  whether  any  other  person  was  present  when  "Wil- 
h'am  Booth"  was  \vritten  besides  yourself?— I  believe  a  clerk. 

What   clerk? — That  I  decline  to  say. 
Mr.   Chambers. — Mv  Lord.   I  press  the  question. 

Lord  DEN>tAN.  (To  the  witness).— That  other  person  or  you  must 
have  written  it? — Preciselv  so. 


498  PRIVILEGED   TOPICS.  No.  485. 

You  knew  that  when  you  uttered  it? — When  I  handed  it  to  Mr.  Phil- 
lips I  did  know  it  and  Mr.  Phillips  knew  it  too. 

By  Mr.  Chambers. — Vvho  was  the  other  person?  I  ask  the  question, 
and  I  submit,  my  Lord,  it  is  a  proper  question. 

Lord  Denman. — It  must  be  answered. 

Montagu  Chambers,  for  the  prisoner,  objected  to  those  parts  of  the 
cross-examination  being  given  in  evidence  which  followed  the  prisoner's 
declining  to  answer,  and  applying  to  the  Court  for  protection,  and  the 
decision  of  Lord  Denman,  C.  J.,  that  he  must  answer  the  question. 

Montagu  Chambers,  for  the  prisoner:  "I  submit  that  the  prisoner, 
when  he  was  a  witness  on  the  trial  of  the  case  in  Blagden  v.  Booth,  was 
not  bound  to  answer  the  question  then  put,  which  he  demurred  to  answer- 
ing, and  was  illegally  compelled  to  answer;  and  that,  therefore,  the 
answers  he  gave  to  those  questions  could  not  be  legally  given  in  evi- 
dence against  him;  and  that,  although  he  did  so  answer,  the  statements, 
he  made  were  not  receivable  in  evidence  against  him  on  the  subsequent 
trial  for  forgery :  first  because  his  answers  were  given  upon  oath ;  sec- 
ondly, because  he  was  not  cautioned  by  the  learned  judge  before  whom 
he  was  examined ;  and,  thirdly,  that,  when  he  did  appeal  to  the  Court  he 
was  told  he  must  answer." 

Willes,  for  the  prosecution :  "When  a  witness,  in  giving  his  evidence, 
even  inadvertently  states  a  part  of  a  transaction,  and  it  is  essential  to 
truth  and  justice  that  he  should  answer  the  whole,  he  must  do  so.  Here 
the  witness  knew  what  he  came  to  prove;  he  does  not  take  advantage 
of  his  privilege,  but  makes  certain  statements  to  the  advantage  of  one 
party,  and  then  wishes  to  say  no.  more,  and  insist  on  his  privilege,  which, 
he  cannot  be  allowed  to  do,  as  the  plaintiff  has  a  right  to  the  whole 
truth." 

RoLFE,  B.:  "If  the  witness  says,  on  his  oath,  that  he  believes  the 
answer  will  criminate  him,  can  you  compel  him  to  give  the  answer  after 
that?"  Wilde,  C.  J.:  "I  have  known  judges  over  and  over  again  tell 
the  witness  he  must  answer."  Parke,  B.  :  "It  must  appear  to  the  judge 
that  the  answer  really  has  some  tendency  to  criminate  the  witness." 
5*.  Martin:    "I  submit  that  the  judge  has  a  discretion." 

"The  case  was  afterwards  considered  by  the  judges,  when  a  majority 
of  their  Lordships  held  the  conviction  wrong,  being  of  opinion,  that,  if 
a  witness  claims  the  protection  of  the  Court  on  the  ground  that  his 
answer  would  tend  to  criminate  himself,  and  there  appears  reasonable 
ground  to  believe  that  it  would  do  so,  he  is  not  compellable  to  answer; 
and  if  obliged  to  answer  notwithstanding,  what  he  says  must  be  con- 
sidered to  have  been  obtained  by  compulsion,  and  cannot  afterwards  be 
given  in  evidence  against  him.  Their  Lordships  did  not  decide  (as  the 
case  did  not  call  for  it)  whether  the  mere  declaration  of  a  witness  on 
oath,  that  he  believed  that  the  answer  would  tend  to  criminate  him, 
would  or  would  not  be  sufficient  to  protect  him  from  answering,  where 
sufficient  other  circumstances  did  not  appear  in  the  case  to  induce  the 
judges  to  believe  that  the  answer  would  tend  to  criminate  the  witness. 


i 


No.  487.  SELF-CRIMINATION.  499 

Their  Lordships,  also  held,  that  it  made  no  difference  in  the  right  of 
the  witness  to  protection  that  he  had  before  answered  in  part; — their 
Lordships  being  of  opinion  that  he  was  entitled  to  claim  the  privilege 
at  any  stage  of  the  inquiry,  and  that  no  answer  forced  from  him  by  the 
presiding  judge  (after  such  a  claim)  could  be  afterwards  given  in  evi- 
dence against  him." 


BURR'S  TRIAL  (1807). 
Robertson's  Rep.  I,  24J. 
Marshall,  C.  J. :  "It  is  alleged  that  he  [the  witness]  is  and  from 
the  nature  of  things  must  be  the  sole  judge  of  the  effect  of  his  answer; 
that  he  is  consequently  at  liberty  to  refuse  to  answer  any  ques- 
***"  tion,  if  he  will  say  upon  his  oath  that  his  answer  to  that  question 
might  criminate  himself.  .  .  .  [But]  there  is  no  distinction  which  takes 
from  the  Court  the  right  to  consider  and  decide  whether  any  direct 
answer  to  the  particular  question  propounded  could  be  reasonably  sup- 
posed to  affect  the  witness.  There  may  be  questions  no  direct  answer 
to  which  could  in  any  degree  affect  him ;  and  there  is  no  case  which  goes 
so  far  as  to  say  that  he  is  not  bound  to  answer  such  questions.  .  .  . 
When  two  principles  come  in  conflict  with  each  other,  the  Court  must 
give  them  both  a  reasonable  construction  so  as  to  preserve  them  both  to 
a  reasonable  extent.  The  principle  which  entitles  the  United  States  to^ 
the  testimony  of  every  citizen,  and  the  principle  by  which  every  witness, 
is  privileged  not  to  accuse  himself,  can  neither  of  them  be  entirely  dis- 
regarded. They  are  believed  both  to  be  preserved  to  a  reasonable  extent, 
and  according  to  the  true  intention  of  the  rule  and  of  the  exception  to 
that  rule,  by  observing  that  course  which,  it  is  conceived,  Courts  have 
generally  observed ;  it  is  this :  When  a  question  is  propounded,  it  be- 
longs to  the  Court  to  consider  and  decide  whether  any  direct  answer  to 
it  can  implicate  the  witness;  if  this  be  decided  in  the  negative,  then  he 
may  answer  it  without  violating  the  privilege  which  is  secured  to  him 
by  law.  If  a  direct  answer  to  it  may  criminate  himself,  then  he  must 
be  the  sole  judge  what  his  answer  would  be;  the  Court  cannot  partici- 
pate with  him  in  this  judgment,  because  they  cannot  decide  on  the  effect 
of  his  answer  without  knowing  what  it  would  be,  and  a  disclosure  of 
that  fact  to  the  judges  would  strip  him  of  the  privilege  which  the  law 
allows  and  which  he  claims." 


STATE  v.  THADEN    (1890). 

43  Minn.  25s,  255,  45  N.  IV.  447. 

Mitchell,  J.:    "The  defendant  was  jointly  indicted  with  two  others 

(Partello  and  Tall)  for  forgery  in  the  second  degree,  by  putting  off  as 

true  upon  one  Christianson  a  false   and   forged  promissory  note 

purporting  to  have  been  executed  by  one  Linstad.     He  demanded 

and  was  granted  a  separate  trial,  and  the  state  called,  as  a  witness  in 


500  PRIVILEGED  TOPICS.  No.  487. 

its  behalf,  Linstad,  the  person  whose  name  was  alleged  to  have  been 
forged.  The  first  error  assigned  is  the  ruling  of  the  trial  Court  in  com- 
pelling this  witness  to  answer  certain  questions,  he  having  previously 
declined  to  do  so,  claiming  that  the  same  might  tend  to  criminate  him- 
self. While  no  principle  of  the  common  law  is  more  firmly  established  than 
that  which  affords  a  witness  the  privilege  of  refusing  to  answer  any 
question  which  will  criminate  himself,  yet  its  application  is  attended 
with  practical  difficulties.  .  .  .  The  problem  is  how  to  administer  the  rule 
so  as  to  afford  full  protection  to  the  witness,  and  at  the  same  time  pre- 
vent simulated  excuses.  All  the  authorities  agree  to  the  general  propo- 
sition that  the  statement  of  the  witness  that  the  answer  will  tend  to 
criminate  himself  is  not  necessarily  conclusive,  but  that  this  is  a  ques- 
tion which  the  Court  will  determine  from  all  the  circumstances  of  the  par- 
ticular case,  and  the  nature  of  the  evidence  which  the  witness  is  called 
upon  to  give.  But  the  question  on  which  the  cases  seem  to  differ  is  as  to 
what  we  may  call  the  burden  of  proof;  some  holding  that  the  state- 
ment of  the  witness  must  be  accepted  as  true,  unless  it  affirmatively  ap- 
pears from  the  circumstances  of  the  particular  case  that  he  is  mistaken, 
or  acts  in  bad  faith,  while  other  cases  hold  that,  to  entitle  a  witness 
to  the  privilege  of  silence,  the  Court  must  be  able  to  see  from  the  cir- 
cumstances of  the  case  and  the  nature  of  the  evidence  called  for,  that 
there  is  reasonable  ground  to  apprehend  danger  to  the  witness,  if  he  is 
compelled  to  answer.  .  .  .  The  difference  is  theoretical,  rather  than  prac- 
tical ;  for  it  would  be  difficult  to  conceive  of  an  instance  where  the  cir- 
cumstances of  the  case,  and  the  nature  of  the  evidence  called  for,  would 
be  entirely  neutral  in  their  probative  force  upon  the  question  whether 
or  not  there  was  reasonable  ground  to  apprehend  that  the  answer  might 
tend  to  criminate  the  witness.  After  consideration  of  the  question  and 
an  examination  of  the  authorities,  our  conclusion  is  that  the  best  prac- 
tical rule  is  that  laid  down  in  some  of  the  English  cases,  and  adopted 
and  followed  by  Chief  Justice  Cockburn,  in  Reg.  v.  Boyes.^  ...  To  this 
we  would  add  that,  when  such  reasonable  apprehension  of  danger  appears, 
then,  inasmuch  as  the  witness  alone  knows  the  nature  of  the  answer  he 
would  give,  he  alone  must  decide  whether  it  would  criminate  him.  This, 
we  think,  is  substantially  what  Chief  Justice  Marshall  meant  by  his  state- 
ment of  the  rule  in  the  Burr  trial.  .  .  . 

"Applying  this  rule  to  the  case  at  bar,  it  is  very  clear  that  no  error 
was  committed  in  compelling  the  witness  Linstad  to  answer  the  ques- 
tions. The  sole  object  of  the  evidence  sought  to  be  elicited  from  him 
was  to  prove  that  his  signature  to  the  note  was  forged,  and  not  genu- 
ine. For  the  purpose  of  proving  this,  counsel  for  the  state  exhibited 
the  note  to  him,  and  asked  if  the  name  affixed  was  his  signature.  This 
the  witness  declined  to  answer,  on  the  ground  that  it  might  criminate 
himself,  and  the  Court  held  that  he  need  not  answer  the  question.  Coun- 
sel then,  with  the  evident  purpose  of  proving  the  same  fact  indirectly, 
asked  the  follov/ing  questions:     'Have  you  ever  seen  this  note  before?' 

t;— I   B.  &  S.    ^11.   ^21    (i86i). 


No.  488.  SELF-CRIMINATION.  501 

The  witness  replied,  'I  refuse  to  answer  that  question,  because  it  may 
criminate  myself;'  or,  as  subsequently  expressed,  'it  might  have  a  tend- 
ency to  criminate  myself.'  The  Court  having  ruled  that  he  must  answer, 
the  witness  replied,  'Yes.'  Counsel  then  asked  him,  'When?'  to  which 
the  witness  interposed  a  claim  of  privilege  in  the  same  form  as  before, 
and,  the  Court  having  again  ruled  that  he  must  answer,  he  replied,  fixing 
the  time  he  had  first  seen  the  note  at  a  date  subsequent  to  the  date  of 
the  alleged  uttering  by  the  defendant. 

"Whether  the  rulings  of  the  court  were  consistent  in  sustaining  the 
witness'  claim  of  privilege  as  to  the  first  question,  and  overruling  it  as  to 
the  other  two,  it  immaterial.  There  was  not  a  thing,  either  in  the  cir- 
cumstances of  the  case  as  then  presented  to  the  court,  or  in  the  nature 
of  the  questions,  to  suggest  any  reasonable  apprehension  of  danger  to 
the  witness  from  being  compelled  to  answer.  The  very  nature  of  the 
offence  charged  against  defendant  negatived  the  idea  of  the  witness 
being  a  party  to  it,  and  there  was  nothing  in  the  character  of  the  evi- 
dence sought  to  be  elicited  from  him  that  would  reasonably  suggest  any 
real  or  appreciable  danger  that  it  would  or  could  tend  to  inculpate  him 
in  any  other  offence.  The  answers  themselves,  when  given,  show  that 
they  had  no  such  effect."^ 


PEOPLE  V.  TYLER    (1869). 

36  Col.  522,  530. 

The  facts  and  the  statute  involved  in  this  case  are  stated  ante,  in 
No.  72. 

Sawyer,  C.  J. :  "At  the  trial  the  defendant  did  not  avail  hini- 
****  self  of  the  right  conferred  by  this  Act  to  offer  himself  as  a  wit- 
ness on  his  own  behalf.  During  the  argument  of  the  case,  the  District 
Attorney  called  the  attention  of  the  jury  to  the  fact  that  the  de- 
fendant had  not  testified  in  his  own  behalf,  and  argued  and  insisted 
before  said  jury  that  the  silence  of  the  defendant  was  a  circumstance 
strongly  indicative  of  defendant's  guilt.  Defendant's  counsel  objected 
to  this  course  of  argument,  and  requested  the  Court  to  require  the  Dis- 
trict Attorney  to  refrain  from  urging  such  inference,  but  the  Court  de- 
clined to  interfere,  and  intimated  that  the  law  justified  the  counsel  in 
the  course  pursued.  Counsel  thereupon  continued  to  urge  before  the 
jury  that  the  silence  of  the  defendant  was  a  circumstance  tending  strongly 
to  prove  his  guilt,  and  the  counsel  for  the  prisoner  excepted.  At  the 
close  of  the  argument  of  the  case  to  the  jury,  the  defendant's  counsel 
asked  the  Court  to  give  to  the  jury  the  following  instruction:  'The  jury 
should  not  draw  any  inference  to  the  prejudice  of  the  defendant  from  the 
fact  that  he  did  not  offer  himself  as  a  witness  in  his  own  behalf.  It  is 
optional  with  a  defendant  to  do  so  or  not.  and  the  law  does  not  intend 
that  the  jury  should  put  any  construction  upon  his  silence  unfavorable 

6 — Compare   the   authorities   cited   in  W.,  §  2271. 


502  PRIVILEGED  TOPICS.  No.  488. 

to  him.'  The  Court  refused  to  give  the  instruction,  and  defendant  ex- 
cepted. The  action  of  the  Court  in  the  premises  is  claimed  to  be  erro- 
neous. .  .  . 

"Now,  if,  at  the  trial,  when,  for  all  the  purposes  of  the  trial,  the  bur- 
den is  on  the  People  to  prove  the  offense  charged  by  affirmative  evidence, 
and  the  defendant  is  entitled  to  rest  upon  his  plea  of  not  guilty,  an  infer- 
ence of  guilt  could  legally  be  drawn  from  his  declining  to  go  upon  the 
stand  as  a  witness,  and  again  deny  the  charge  against  him  in  the  form 
of  testimony,  he  would  practically,  if  not  theoretically,  by  his  act  declin- 
ing to  exercise  his  privilege,  furnish  evidence  of  his  guilt  that  might 
turn  the  scale  and  convict  him.  In  this  mode  he  would  indirectly  and 
practically  be  deprived  of  the  option  which  the  law  gives  him,  and  of 
the  benefit  of  the  provision  of  the  law  and  the  Constitution,  which  say, 
in  substance,  that  he  shall  not  be  compelled  to  criminate  himself.  If 
the  inference  in  question  could  be  legally  drawn,  the  very  act  of  exercis- 
ing his  option  as  to  going  upon  the  stand  as  a  witness,  which  he  is 
necessarily  compelled  by  the  adoption  of  the  statute  to  exercise  one  way 
or  the  other,  would  be,  at  least  to  the  extent  of  the  weight  given  by  the 
jury  to  the  inference  arising  from  his  decfining  to  testify,  a  crimination 
of  himself.  Whatever  the  ordinary  rule  of  evidence  with  reference  to 
inferences  to  be  drawn  from  the  failure  of  parties  to  produce  testimony 
that,  must  be  in  their  power  to  give„  we  are  satisfied  that  the  defendant, 
with  respect  to  exercising  his  privilege  under  the  provisions  of  the  Act 
in  question,  is  entitled  to  rest  in  silence  and  security  upon  his  plea  of 
not  guilty,  and  that  no  inference  of  guilt  can  be  properly  drawn  against 
him  from  his  declining  to  avail  himself  of  the  privilege  conferred  upon 
him  to  testify  on  his  own  behalf;  that  to  permit  such  an  inference  would 
be  to  violate  the  principles  and  the  spirit  of  the  Constitution  and  the 
statute,  and  defeat  rather  than  promote  the  object  designed  to  be  accom- 
plished by  the  innovation  in  question." 


STATE  V.  CLEAVES    (1871). 
59  Me.  2p8,  soo. 
Appleton,  C.  J. :     "The  defendant,  a  married  woman,  was  indicted 
for  being  a  common  seller  of  intoxicating  liquors.    The  presiding  justice 
instructed  the  jury  'that  the  fact  that  the  defendant  did  not  go 
^^^      upon  the  stand  to  testify  was  a  proper  matter  to  be  taken  into 
consideration  by  them  in  determining  the  question  of  her  guilt  or  inno- 
cence.'    To  this   instruction   exceptions   were   seasonably  taken.      The 
statute  authorizing  the  defendant  in  criminal  proceedings,  at  his  own 
request,    to    testify,    was    passed    for    the    benefit    of    the    innocent 
and  for  the  protection  of  innocence.     The  defendant,  in  criminal  cases, 
is  either  innocent  or  guilty.     If  innocent,  he  has  every  inducement  to 
state  the  facts,  which  would  exonerate  him.     The  truth  would  be  his 
protection.     There  can  be  no  reason  why  he  should  withhold  it,  and 


No,  491.  SELF-CRIMINATION.  503 

every  reason  for  its  utterance.  Being  guilty,  if  a  witness,  a  statement 
of  the  truth  would  lead  to  his  conviction,  and  justice  would  ensue.  Be- 
ing guilty,  and  denying  his  guilt  as  a  witness,  an  additional  crime  would 
be  committed,  and  the  peril  of  a  conviction  for  a  hew  offence  incurred. 
But  the  defendant,  having  the  opportunity  to  contradict  or  explain  the 
inculpative  facts  proved  against  him,  may  decline  to  avail  himself  of 
the  opportunity  thus  afforded  him  by  the  law.  His  declining  to  avail 
himself  of  the  privilege  of  testifying  is  an  existent  and  obvious  fact.  It 
is  a  fact  patent  in  the  case.  The  jury  cannot  avoid  perceiving  it.  Why 
.should  they  not  regard  it  as  a  fact  of  more  or  less  weight  in  determining 
the  guilt  or  innocence  of  the  accused?  .  .  .  The  silence  of  the  accused, 
the  omission  to  explain  or  contradict,  when  the  evidence  tends  to  estab- 
lish guilt,  is  a  fact — the  probative  effect  of  which  may  vary  according  to 
the  varying  conditions  of  the  different  trials  in  which  it  may  occur — 
which  the  jury  must  perceive,  and  which  perceiving  they  can  no  more 
disregard  than  one  can  the  light  of  the  sun,  when  shining  with  full  blaze 
on  the  open  eye.  It  has  been  urged  that  this  view  of  law  places  the 
prisoner  in  an  embarrassed  condition.  Not  so.  The  embarrassment  of 
the  prisoner,  if  embarrassed,  is  the  result  of  his  own  previous  miscon- 
duct, not  of  the  law.  If  innocent,  he  will  regard  the  privilege  of  testi- 
fying as  a  boon  justly  conceded.  If  guilty,  it  is  optional  with  the  accused 
to  testify  or  not,  and  he  cannot  complain  of  the  election  he  may  make. 
If  he  does  not  avail  himself  of  the  privilege  of  contradiction  or  explana- 
tion, it  is  his  fault,  if  by  his  own  misconduct  or  crime  he  has  placed  him- 
self in  such  a  situation  that  he  prefers  any  inferences  which  may  be 
drawn  from  his  refusal  to  testify,  to  those  which  must  be  drawn  from 
his  testimony,  if  truly  delivered." 


Statutes  :    Maine,  Pub.  St.  1883,  c.  134,  §  19 :    "In  all  criminal  trials 
the  accused  shall,  at  his  own  request,  but  not  otherwise,  be  a  competent 
witness.  .  .  .  The  fact  that  he  does  not  testify  in  his  own  behalf 
shall  not  be  taken  as  evidence  of  his  guilt. "^ 


COMMONWEALTH  v.  WEBSTER    (1850). 
5  Cush.  295,  S16. 
The  facts  in  this  case  are  stated  ante,  in  No.  17.    Shaw,  C.  J.:    "A 
few  other  general  remarks  occur  to  me  upon  this  subject,  which  I  will 
submit  to  your  consideration.    Where,  for  instance,  probable  proof 
is  brought  of  a  state  of  facts  tending  to  criminate  the  accused, 
the  absence  of  evidence  tending  to  a  contrary  conclusion  is  to  be  con- 
sidered.— though  not  alone  entitled  to  much  weight ;  because  the  burden 
of  proof  lies  on  the  accuser  to  make  out  the  whole  case  by  substantive 

7 — Compare  the  authorities  cited   in   W.,  §  2272,    and   the   statutes   quoted,   post,   Ap- 
pendix. 


504 


PRIVILEGED   TOPICS. 


No.  491. 


evidence.  But  when  a  pretty  stringent  proof  of  circumstances  is  pro- 
duced, tending  to  support  the  charge,  and  it  is  apparent  that  the 
accused  is  so  situated  that  he  could  offer  evidence  of  all  the  facts  and 
circumstances  as  they  existed,  and  show,  if  such  was  the  truth,  that  tlie 
suspicious  circumstances  can  be  accounted  for  consistently  with  inno- 
cence, and  he  fails  to  offer  such  proof,  the  natural  conclusion  is  that 
the  proof,  if  produced,  instead  of  rebutting  would  tend  to  sustain  the 
charge.  But  this  is  to  be  cautiously  applied,  and  only  in  cases  where 
it  is  manifest  that  proofs  are  in  the  power  of  the  accused  not  accessible 
to  the  prosecution."^ 


FOSTER  V.  PEOPLE  (1869). 
18  Mich.  266,  214. 

Campbell,  J. :     "The  respondent  was  informed  against  jointly  with 
one  William  McCoy,  in  the  Circuit  Court  for  the  county  of  Macomb, 
for  the  larceny  of  a  horse,  and  some  other  articles.     Foster  was 
*  tried  separately,  and  the  other  defendant,  McCoy,  was  used  by  the 

People,  as  a  witness  against  him.  McCoy  proved  facts  tending  to  show  the 
guilt  of  Foster,  and  showing  also  his  own  guilt,  in  receiving  the  horse 
in  Detroit,  and  taking  him  to  Toledo,  where  the  witness  was  arrested 
with  the  stolen  property.  Upon  cross-examination,  he  admitted  that  he 
had  made  an  affidavit  for  continuance,  in  which  he  swore  that,  as  he 
had  been  advised  by  counsel,  and  believed,  he  had  a  good  defence  upon 
the  merits.  Counsel  for  Foster  then  asked  what  that  defence  was.  The 
counsel  for  the  People  objected  to  the  question,  on  the  ground  that  a 
person  accused  of  crime  could  not,  while  a  trial  was  pending,  be  com- 
pelled to  disclose  his  defence.  The  Court  overruled  this  objection,  and 
then  the  witness  declined  to  answer.  The  record  does  not  show  on 
what  ground  the  witness  declined.  The  Court  refused  to  direct  him 
to  answer.  .  .  .  The  question,  therefore,  narrows  itself  to  an  inquiry 
whether,  after  undertakinp-  voluntarily  to  explain  the  transactions  con- 
nected with  the  larceny  and  the  disposition  of  the  property  involved  in  the 
charge  on  trial,  and  after  answering  fully  the  direct  questioning  of  the 
prosecution,  and  unequivocally  criminating  himself  to  the  extent  of 
complete  legal  guilt  of  larceny  of  that  property,  he  can  then  refuse  to 
answer  further,  and  be  protected  against  further  disclosures  relating  to 
the  same  transaction. 

"The  cases  which  apply  to  ordinary  witnesses — who  do  not  stand 
properly  on  the  same  footing  with  accomplices — do  not  in  any  way 
sanction  such  a  stretch  of  privilege.  Where  he  has  not  actually  admitted 
criminating  facts,  the  witness  may  unquestionable  stop  short  at  any  point 
and  determine  that  he  will  go  no  further  in  that  direction.  .  .  .  But 
the  rule  which  allows  a  witness  to  refuse  answering  questions  not  directly 
pointing  to  guilt,  rests  solelv  nn  the  doctrine  that,  as  in  most  cases  the 
crimination  would  be  made  out  by  a  series  of  circumstances,  any  one 

8— Compare  the  authorities  cited  in   W.,§  2273,  and  No.  148,  ante. 


No.  492.  SELF-CRIMINATION.  "  595 

of  them  may  have  such  a  tendency  to  aid  in  reaching  the  result,  that  an 
answer  concerning  it  may  supply  means  of  conviction,  by  aiding  the  other 
proofs  which  it  indicates,  or  supplements,  on  behalf  of  the  prosecu- 
tion. The  right  to  decline  answering  as  to  these  ininor  facts  is  merely 
accessory  to  the  right  to  decline  answering  to  the  entire  criminating 
charge,  and  can  be  of  no  manner  of  use  when  that  is  once  admitted,  and 
must  be  regarded  as  waived  when  the  objection  to  answering  to  the 
complete  offense  is  waived.  The  law  does  not  endeavor  to  preserve  any 
vain  privileges,  and  such  a  privilege  as  would  allow  a  witness  to  answer 
a  principal  criminating  question,  and  refuse  to  answer  as  to  its  incidents, 
would  be  worse  than  vain ;  for,  while  it  could  not  help  the  witness,  it 
must  inevitably  injure  the  party,  who  is  thus  deprived  of  the  power 
of  cross-examination  to  test  the  credibility  of  a  person  v/ho  may,  by 
avoiding  it,  indulge  his  vindictiveness  or  corrupt  passions  with  impunity. 
.  .  .  And  the  further  consideration  is  also  recognized,  that  a  witness 
has  no  right,  under  pretense  of  a  claim  of  privilege,  to  prejudice  a  party 
by  a  one-sided  or  garbled  narrative.  .  .  . 

"  When  accomplices  are  allowed  to  testify  for  the  purpose  of  furnishing 
evidence  against  a  prisoner,  they  not  only  know  that  they  are  expected 
10  criminate  themselves,  but  they  do  it  with  the  prospect  of  an  advantage, 
which,  if  not  absolutely  promised,  is  substantially  pledged  to  them,  if 
they  make  full  disclosares.  If  they  see  fit  to  furnish  criminating  proof, 
there  is  every  reason  to  compel  them  to  submit  to  the  fullest  and  most 
searching  inquiry.  They  expressly  waive  their  privilege  by  giving  such 
proof,  for  they  could  not  be  sworn  at  all  without  their  consent,  while 
under  a  joint  indictment;  and,  if  not  indicted,  they  could  still  refuse  to 
furnish  evidence  of  joint  misconduct.  But  there  is  neither  reason 
nor  show  of  authority  which  can,  in  any  case,  allow  to  them  any 
privilege  whatever,  whether  they  have  gone  so  far  already,  as  to  any 
matters  in  which  they  and  the  prisoner  on  trial  have  been  connected.  As 
to  separate  and  purely  private  transactions,  not  connected  with  the  mat- 
ter under  inquiry,  they  stand  like  any  other  witnesses,  because  they  are 
not,  as  to  those,  accomplices  at  all,  and  no  protection  is  pledged  to  them 
on  such  charges.  .  .  .  The  witness  in  the  present  case  ought  not  to 
have  been  permitted  to  decline  answering  the  question  put  to  him  touch- 
ing the  character  of  his  defence,  as  alluded  to  in  his  affidavit  for  con- 
tinuance."^ 

I — Compare    the    following   phrasings:  questions    relative     to     that     transaction"; 

1820,  Ex  parte  Cosscns,  Buck  Bkcy.  1872,  Connors  v.  People,  50  N.  Y.  240; 
Cas.  531,  540;  bankrupt's  examination;  L.  Church,  C.  J.,  permitting  answers  as  to 
C  Eldon:  "If  a  man  has  gone  on  answer-  former  arrests,  as  affecting  credibility: 
ing  questions  that  had  a  tendency  to  crim-  "The  prohibition  in  the  Constitution  is 
inate  himself,  he  may  stay,  in  answering  against  compelling  an  accused  person  to 
those  questions,  wherever  he  pleases;  you  become  a  witness  against  himself.  If  he 
cannot  carry  him  further  than  he  chooses  consents  to  become  a  witness  in  the  case, 
voluntarily  to  go  himself";  1824,  Dixon  voluntarily  and  without  any  compulsion, 
V.  Vale,  1  C.  &  P.  278;  Best.  C.  J.,  said  it  would  seem  to  follow  that  he  occupies 
that  if  A  witness,  after  caution,  chooses  for  the  time  being  the  position  of  a  wit- 
to    answer,    "he    is    bound    to    answer    all  ness  with   all   its  rights  and  privileges  and 


506  PRIVILEGED  TOPICS.  No.  493. ; 


STATE  V.  WENTWORTH    (1875). 
63  Me.  234,  243. 

Complaint  to  the  municipal  court  of  Biddeford,  for  selling  one  pint' 
of  intoxicating  liquors  to  Charles  T.  Goodwin.  .  .  .  The  defendant  being 
called  as  a  witness  in  his  own  behalf,  was  interrogated  by  the 
4"*>  government  counsel  concerning  sales  of  intoxicating  liquors  made- 
by  himself  personally.  His  counsel  objected  to  the  inquiries  for  the 
reasons  (among  others)  urged  against  the  inquiries  made  of  Goodwin, 
and  claimed  that  he  was  not  obliged  by  law  to  answer  concerning  sales 
made  by  himself  prior  to  the  sale  charged  in  the  complaint;  that  the 
waiver  of  his  privilege  to  give  no  evidence  tending  to  criminate  him- 
self applied  only  to  the  charge  under  consideration  and  set  forth  in 
the  complaint.  The  presiding  judge  remarked  that  the  full  court  had 
decided  otherwise  and  ruled  that  the  defendant  must  answer  any  ques- 
tion put  to  him  by  the  county  attorney  in  regard  to  any  sales  of  intoxi- 
cating liquors  in  that  store  by  himself  to  any  person  withi-n  thirty  days. 
To  these  rulings  the  defendant  excepted.  .  .  . 

Appleton,  C.  J.:  "The  objection  is  taken  that  the  counsel  for  the 
state,  in  his  inquiries  of  the  defendant  after  at  his  own  request  he  was 
a  witness,  transcended  the  limits  of  legitimate  cross-examination.  The 
defendant  was  charged  with  having  sold  intoxicatirg  liquors  to  one 
Charles  T,  Goodwin,  on  a  day  certain.  It  is  immaterial,  so  far  as  regards 
his  criminal  liability,  whether  the  sale  was  by  him  or  his  authorized 
agent.  He  was  not  obliged  to  testify.  He  does  testify  'upon  his  own 
request.'  He  goes  on  the  stand  and  denies  the  sale  or  the  authority 
to  sell.  He  exonerates  himself.  He  denies  the  commission  of  the 
offence  charged.  He  is  subject  to  cross-examination  as  the  necessary 
result  of  his  assuming  the  position  of  a  witness.  What  are  the  limits 
which  the  law  imposes  on  this  cross-examination  }  It  will  hardly  be 
contended  that  he  can  go  on  the  stand  and  by  a  simple  denial  escape  all 
discreditive  or  criminative  cross-interrogation.  ...  If  he  discloses  part, 
he  must  disclose  the  whole  in  relation  to  the  subject-matter  about  which 
he  has  answered  in  part.  Answering  truly  in  part  with  answers  exon- 
erative, he  cannot  stop  midway,  but  must  proceed,  though  his  further 
answers  may  be  self-criminative.  Answering  falsely  as  to  the  subject- 
matter,  he  is  not  to  be  exempt  from  cross-examination  because  his 
answers  to  such  cross-examination  would  tend  to  show  the  falsity  of 
those  given  on  direct  examination.  If  it  were  so,  a  preference  would  be 
accorded  to  falsehood  rather  than  to  truth. "^ 


subject    to    all    its    duties    and   obligatioiis.        and  if  that  was  voluntary,  he  has  no  rea- 
If   he   gives    evidence   which   bears   against        son  to  complain." 

hiniself,   it    results   from   his   voluntary   act  2 — Compare  the  authorities  cited  in   W., 

of  becoming  a  witness,  and  not  from  com-        §  2276,    and    the    rule    for    cross-examining 
pulsion.     His  own  act  is  the  primary  cause,        only   to   matters    dealt    with    on    the    direct   j 

examination    {ante.   Nos.   403-405). 


No,  495.  PRIVILEGED  COMMUNICATIONS.  507 

SUB-TITLE  III: 

PRIVILEGED  COMMUNICATIONS. 

J.    In  General. 

DUCHESS  OF  KINGSTON'S  CASE  (1776). 
20  How.  St.  Tr.  586. 
Bigamy;  trial  by  the  House  of  Lords.  To  prove  the  first  and  disputed 
marriage,  the  question  was  asked  of  Lord  Harrington,  an  old  friend  of 
the  accused:  "Did  you  ever  hear  from  the  lady  at  the  bar  that 
*^*  she  was  married  to  Mr.  Hervey?"  Lord  Barrington:  "If  any- 
thing has  been  confided  to  my  honor,  or  confidentially  told  me,  I  do  hold, 
with  humble  submission  to  your  lordships,  that  as  a  man  of  honor,  as  a 
man  regardful  of  the  laws  of  society,  I  cannot  reveal  it."  Then  the 
Duchess  released  Lord  Barrington  from  every  obligation  of  honor ;  and 
the  Solicitor-General,  not  to  be  outdone,  declared  that  he  would  ask  no 
more  questions.  But  several  lords  insisted  on  their  right  to  continue  the 
questioning.  Lord  Camden:  "I  hope  that  your  lordships,  sitting  in 
judgment  on  criminal  cases — the  highest  and  most  important  that  may 
affect  the  lives,  liberties,  and  properties  of  your  lordships — that  you  shall 
not  think  it  befitting  the  dignity  of  this  high  Court  of  justice  to  be  debat- 
ing the  etiquette  of  honor  at  the  same  time  when  we  are  trying  lives  and 
liberties.  My  lords,  the  laws  of  this  land — I  speak  it  boldly  in  this  grave 
assembly — are  to  receive  another  answer  from  those  who  are  called  to 
depose  at  your  bar,  than  to  be  told  that  in  point  of  honor  and  of  con- 
science they  do  not  think  that  they  acquit  themselves  like  persons  of  that 
description  when  they  declare  what  they  know."  .  .  .  Di^^e  0/ Richmond: 
"I  do  not  look  on  a  witness  at  the  bar  to  be  the  witness  of  the  counsel 
or  of  the  prisoner,  but  the  witness  of  the  House''.  Lord  Barrington  still 
refusing,  the  Lords  adjourned  to  discuss  the  point  of  law,  and  it  was 
announced  to  him  that  "it  is  the  judgment  of  this  House  that  you  are 
bound  by  law  to'  answer  all  such  questions  as  shall  be  put  to  you."^ 


DUBLIN  ELECTION  CASE  (1869). 
/  O'M.  &  H.  270,  271, 
"Mr.  Sanger,  the  telegraph-officer,  when  called  as  a  witness  to  pro- 
duce the  telegrams,  said,  'My  lord,  before  I  produce  these  telegrams,  I 
must  object  to  their  production.     We  have  always  looked  upon  a 
*^**      telegram  as  sacred,  and  we  think  that  this  decision  of  your  lord- 
ship will  shake  the  confidence  of  the  public  in  the  telegraph.'     Mr.  Jus- 
tice Keogh  said  that  the  opinion  of  the  telegraph  company  as  to  this 
could  make  no  difference.     The  telegrams  were  produced.  .  .  .  Mr.  Jus- 
tice Keogii  in  his  judgment  said  further  as  to  this:  'Telegrams  are  noth- 
ing but  electric  letters,  written  by  the  candidates  or  their  agents  to  elec- 
tors.    If  such  letters  were  in  the  pockets  of  the  electors,  or  if  copies  of 

3 — Compare  the  authorities  cited  in  W.,  §  2286. 


508  PRIVILEGED  COMMUNICATIONS.  No.  495. 

them  were  in  desks  of  the  candidates,  the  petitioners  of  course  would 
have  a  right  to  insist  upon  their  production ;  and  there  is  no  reason  why, 
because  they  are  transmitted  along  a  wire  instead  of  being  written  on 
paper  with  pen  and  ink,  they  should  have  any  greater  protection.'  "* 


2.  Attorney  and  Client. 

ANDERSON  v.  BANK  (1876). 
L.  R.  2  Ch.  D.  644,  64^. 

Jessel,  M.  R.  :  "The  object  and  meaning  of  the  rule  is  this:  That,  as 
by  reason  of  the  complexity  and  difficulty  of  our  law,  litigation  can  only 
be  properly  conducted  by  professional  men,  it  is  absolutely  nec- 
*  essary  that  a  man,  in  order  to  prosecute  his  rights  or  defend  him- 

self from  an  improper  claim,  should  have  recourse  to  the  assistance  of 
professional  lawyers,  and  it  being  so  absolutely  necessary,  it  is  equally 
necessary,  to  use  a  vulgar  phrase,  that  he  should  be  able  to  make  a  clean 
breast  of  it  to  the  gentleman  whom  he  consults  with  a  view  to  the 
prosecution  of  his  claim,  or  the  substantiating  his  defence  against  the 
claim  of  others ;  that  he  should  be  able  to  place  unrestricted  and  un- 
bounded confidence  in  the  professional  agent,  and  that  the  communica- 
tions he  so  makes  to  him  should  be  kept  secret,  unless  with  his  consent 
(for  it  is  his  privilege,  and  not  the  privilege  of  the  confidential  agent), 
that  he  should  be  enabled  properly  to  conduct  his  litigation.  That  is  the 
meaning  of  the  rule."^ 


Statutes.  California,  C.  C.  P.  1872,  §  1881 :  "There  are  particular 
relations  in  which  it  is  the  policy  of  the  law  to  encourage  confidence  and 
to  preserve  it  inviolate ;  therefore  a  person  cannot  be  examined  as 
*^^  a  witness  in  the  following  cases:  ...  2.  An  attorney  cannot, 
without  the  consent  of  his  client,  be  examined  as  to  any  communication 
made  by  the  client  to  him,  or  his  advice  given  thereon  in  the  course  of 
professional  employment";  amended  by  the  Commissioners  in  1901  by 

4 — Cooley,  J.,  Constitutional  Limita-  protect  correspondence  by  mail;  and 
tions,  6th  ed.,  p.  371,  note  (1890):  "The  though  the  operator  is  not  a  public  officer, 
telegraph  is  used  as  a  means  of  corre-  that  circumstance  appears  to  us  immaterial, 
spondence,  and  as  a  valuable  and  in  many  He  fulfils  an  important  public  function; 
cases  an  indispensable  substitute  for  the  and  the  propriety  of  his  preserving  in- 
postal  facilities;  and  the  communication  violable  secrecy  in  regard  to  communica- 
is  made,  not  because  the  party  desires  to  tions  is  so  obvious  that  it  is  common  to 
put  the  operator  in  possession  of  facts,  provide  statutory  penalties  for  disclosure, 
but  because  transmission  without  it  is  im-  If  on  grounds  of  public  policy  the 
possible.  It  is  not  voluntary  in  any  other  operator  should  not  voluntarily  disclose, 
sense  than  this,  that  the  party  makes  it  why  do  not  the  same  considerations  forbid 
rather  than  deprive  himself  of  the  benefits  the  Courts  compelling  him  to  do  so?" 
of  this  great  invention  and  improvement.  Compare  the  authorities  cited  in  W., 
The  reasons   of  a  public   nature   for   main-  §  2287. 

taining    the    secrecy    of    telegraphic    com-  5— For  the  history  of  this  privilege,  see 

munication  are  the  same  with  those  which  W.,    §  2290. 


No.  496.  ATTORNEY  AND  CLIENT.  509 

adding:  "nor  can  an  attorney's  secretary,  stenographer,  or  clerk,  be  ex- 
amined, without  the  consent  of  his  employer,  concerning  any  fact  the 
knowledge  of  which  has  been  acquired  in  such  capacity;  but  no  com- 
munication is  privileged  under  this  subdivision  when  the  same  was 
made  with  the  intention  that  it  should  be  communicated  to  any  person 
having  an  interest  adverse  to  the  client,  or  when  the  same  was  made 
in  furtherance  of  a  crime  or  fraud  then  being  perpetrated  or  in  contem- 
plation", lb.  §  1882,  added  by  amendment  of  the  Commissioners  in  1901 : 
"Consent  to  the  giving  of  such  testimony  as  is  mentioned  in  section  1881 
is  conclusively  implied  in  the  following  cases:  i.  When  the  person  who 
made  any  communication  mentioned  in  that  section  testifies,  without 
objection  on  his  part,  as  to  such  communication  or  any  part  thereof,  the 
person  to  whom  such  communication  was  made  may  be  examined  fully, 
in  the  same  action  or  proceeding,  as  to  such  communication ;  2,  When  a 
person  employes  an  attorney  to  prepare  his  will,  the  attorney  may,  in 
any  proceeding  for  the  probate  or  revocation  of  probate  of  such  will, 
testify,  as  to  the  contents  of  such  will  if  lost  or  destroyed,  and  as  to  all 
information  and  instructions  received  by  him  from  the  testator,  in  the 
course  of  the  preparation  or  execution  of  such  will,  and  relating  there- 
to."« 


CRAIG  dem.  ANNESLEY  v.  ANGLESEA   (1743). 

//  How.  St.  Tr.  1 1 39,  1225,  i22g. 

The  preliminary  facts  of  this  case  are  stated  ante,  in  No.  145.  It  was 
proposed  to  show  that  the  defendant,  by  supporting  the  criminal  prose- 
cution for  murder  against  the  plaintiff,  had  tried  to  put  the  plain- 
tiff out  of  the  way,  and  had  expressed  such  plans  in  an  interview 
with  Mr.  Giffard,  a  solicitor.  This  solicitor  had  often  been  employed 
by  the  defendant,  but  for  six  months  had  had  no  affairs  of  his  in  hand, 
and  did  not  expect  to  be  employed  again;  on  May  i  the  plaintiff  had 
killed  a  person, — by  accident,  as  he  claimed ;  on  May  2,  the  defendant, 
hearing  of  it,  sent  for  Mr.  Giffard,  and  told  him  to  go  and  conduct  the 
prosecution,  not  disclosing  the  defendant's  name,  and  incidentally  made 
certain  remarks,  now  offered  in  evidence,  Mr.  Harzvard,  of  counsel  for 
the  plaintiff,  spoke  as  follows :  "My  lord,  the  conversation  Mr.  Giffard 
had  with  lord  Anglesea  was  to  this  purpose ;  Mr.  Giffard  is  an  attorney 

6 — Compare  the  following  statute  of  to  enable  him  to  discharge  the  functions 
Iowa:  Code,  1897,  §  4608:  "No  practicing  of  his  office  according  to  the  usual  course 
attorney,  counselor,  physician,  surgeon,  or  of  practice  or  discipline.  Such  prohibition 
the  stenographer  or  confidential  clerk  of  shall  not  apply  to  cases  where  the  party 
any  person,  who  obtains  such  information  in  whose  favor  the  same  is  made  waives 
by  reason  of  his  employment,  minister  of  the  rights  conferred";  amended  by  St. 
the  gospel  or  priest  of  any  denomination,  1900,  28th  Gen.  Ass.  c.  125,  §  i,  by  insert- 
shall  be  allowed,  in  giving  testimony,  to  ing  the  word  "such"  before  "person." 
disclose  any  confidential  communication  Compare  also  the  statutes  cited  in  W., 
properly  intrusted  to  him  in  his  profes-  §  2292. 
sicnal   capacity,    and    necessary   and    proper 


510  PRIVILEGED   COMMUNICATIONS.  No.  498. 

of  reputation  in  England,  and  as  such  has  been  twenty  years  or  there- 
abouts employed  by  this  noble  earl  in  his  business,  as  he  had  occasion 
for  him.  When  my  unfortunate  chent  was  to  be  trial  at  the  Old  Bailey, 
that  was  the  time  lord  Anglesea  had  greatest  occasion  for  this  Mr.  Gif- 
fard ;  and  it  will  appear  to  your  lordship  that  lord  Anglesea  disclosed  his 
intentions  to  him  in  this  manner :  'I  am  advised  that  it  is  not  prudent  for 
me  to  appear  publicly  in  the  prosecution,  but  I  would  give  10,000/.  to 
have  him  hanged.  Mr.  Jans  my  agent  shall  always  attend  you.  I  am 
in  great  distress;  I  am  worried  by  my  wife  in  Ireland;  Mr.  Charles 
Annesley  is  at  law  with  me  for  part  of  my  estate,  and'  says  he,  'If  I  can- 
not hang  James  Annesley,  it  is  better  for  me  to  quit  this  kingdom  and 
go  to  France,  and  let  Jemmy  have  his  right,  if  he  will  remit  me  into 
France  3,000/.  a  year ;  I  will  learn  French  before  I  go.'  " 

Mr.  Daly,  of  counsel  for  the  defendant,  objects  to  Mr.  Giflfard's  be- 
ing examined,  since  as  an  attorney  he  was  to  keep  the  secrets  of  his 
client,  and  if  he  is  a  gentleman  of  character,  he  will  not,  and  as  an 
attorney  he  ought  not  to  disclose  them. 

Mr.  Recorder  (arguing  for  the  defendant)  :  "My  lord,  formerly  per- 
sons appeared  in  court  themselves ;  but  as  business  multiplied  and  be- 
came more  intricate  and  titles  more  perplexed,  both  the  distance  of 
places  and  the  multiplicity  of  business  made  it  absolutely  necessary  that 
there  should  be  a  set  of  people  who  should  stand  in  the  place  of  suitors, 
and  these  persons  are  called  attornies.  Since  this  has  been  thought  nec- 
essary, all  people  and  all  courts  have  looked  upon  that  confidence  between 
the  party  and  attorney  to  be  so  great  that  it  would  be  destructive  to  all 
business  if  attornies  were  to  disclose  the  business  of  their  clients.  In 
many  cases  men  hold  their  estates  without  titles;  in  others,  by  such 
titles,  that  if  their  deeds  could  be  got  out  of  their  hands,  they  must  lose 
their  fortunes.  When  persons  become  purchasers  for  valuable  consid- 
erations, and  get  a  deed  that  makes  against  them,  they  are  not  obliged 
to  disclose  whether  they  have  that  deed.  Now,  if  an  attorney  was  to  be 
examined  in  every  case,  what  man  would  trust  an  attorney  with  the 
secret  of  his  estate,  if  he  should  be  permitted  to  offer  himself  as  a 
witness?  If  an  attorney  had  it  in  his  option  to  be  examined,  there  would 
be  an  entire  stop  to  business;  nobody  would  trust  an  attorney  with  the 
state  of  his  affairs.  The  reason  why  attornies  are  not  to  be  examined 
to  anything  relating  to  their  clients  or  their  affairs  is  because  they  would 
destroy  the  confidence  that  is  necessary  to  be  preserved  between  them. 
This  confidence  between  the  employer  and  the  person  employed,  is  so 
sacred  a  thing,  that  if  they  were  at  liberty,  when  the  present  cause  was 
over  that  they  were  employed  in,  to  give  testimony  in  favour  of  any 
other  person,  it  would  not  answer  the  end  for  which  it  was  instituted. 
The  end  is,  that  persons  with  safety  may  substitute  others  in  their  room ; 
and  therefore  if  you  cannot  ask  me,  you  cannot  ask  that  man ;  for  every- 
thing said  to  him,  is  as  if  I  had  said  it  to  myself,  and  he  is  not  to  an- 
swer it." 

Mr.  Prime  Sergeant  Malone  (for  the  defendant)  :  "The  mutual  confi- 


No.   498.  ATTORNEY  AND  CLIENT.  511 

dence  between  client  and  attorney  require  the  preservation  of  secrecy; 
and  as  the  client  cannot  be  supposed  to  be  qualified  to  distinguish  what 
is,  or  is  not  necessary  to  his  cause,  if  he  should  be  mistaken,  and  entrust 
his  attorney  with  what  the  attorney  should  be  of  opinion  was  unnec- 
essary, yet  surely  his  attorney  ought  not  to  reveal  it.  As  clients  are  not 
versed  in  law  affairs,  they  must  be  informed  by  their  attorney,  for  which 
purpose  they  must  tell  them  their  whole  case,  and  this  necessity  creates 
a  confidence  between  them.  .  .  .  There  seems  to  be  no  difference  whether 
the  conversation  relates  to  the  principal  cause  in  which  the  attorney  is 
concerned,  or  to  a  collateral  action,  in  which  he  is  not ;  it  is  in  either 
case  grounded  on  the  confidence  that  arises  from  the  attorney's  being 
employed,  and  therefore  ought  not  to  be  disclosed." 

Mr.  Serjeant  Tisdall  (arguing  for  the  plaintiff)  :  "If  he  is  employed 
as  an  attorney  in  any  unlawful  or  wicked  act,  his  duty  to  the  public 
obliges  him  to  disclose  it;  no  private  obligations  can  dispense  with  that 
universal  one,  which  lies  on  every  member  of  the  society,  to  discover 
every  design  which  may  be  formed,  contrary  to  the  laws  of  the  society, 
to  destroy  the  public  welfare.  For  this  reason  I  apprehend,  that  if  a 
secret,  which  is  contrary  to  the  public  good,  such  as  a  design  to  commit 
treason,  murder,  or  perjury,  comes  to  the  knowledge  of  an  attorney, 
even  in  a  cause  wherein  he  is  concerned,  the  ooligation  to  the  public 
must  dispense  with  the  private  obligation  to  the  client." 

Mr.  Harward  (arguing  for  the  plaintiff)  :  "I  take  the  distinction  to 
be,  that  where  an  attorney  comes  to  the  knowledge  of  a  thing  that  is 
malum  in  se,  against  the  common  rules  of  morality  and  honesty,  though 
from  his  client,  and  necessary  to  procure  success  in  the  cause,  yet  it 
is  no  breach  of  trust  in  him  to  disclose  it,  as  it  can't  be  presumed  an 
honest  man  would  engage  in  a  trust  that  by  law  prevented  him  from 
discharging  that  moral  duty  all  are  bound  to,  nor  can  private  obliga- 
tion cancel  the  justice  owing  by  us  to  the  public." 

BowES,  L.  C.  B. :  "Now,  admitting  the  policy  of  the  law  in  protect- 
ing secrets  disclosed  by  the  client  to  his  attorney,  to  be,  as  has  been 
said,  in  favour  of  the  client,  and  principally  for  his  service,  and  that 
the  attorney  is  in  loco  of  the  client,  and  therefore  his  trustee, 
does  it  follow  from  thence,  that  everything  said  by  a  client  to  his  attor- 
ney falls  under  the  same  reason  ?  I  own,  I  think  not ;  because  there  is 
not  the  same  necessity  upon  the  client  to  trust  him  in  one  case  as  in 
the  other;  and  of  this  the  Court  may  judge,  from  the  particulars  of  the 
conversation.  Nor  do  I  see  any  propriety  in  supposing  the  same  person 
to  be  trusted  in  one  case  as  an  attorney  or  agent,  and  in  another  as  a 
common  acquaintance.  .  .  .  But  where  the  client  talks  to  him  at  large 
as  a  friend,  and  not  in  the  way  of  his  profession,  I  think  the  Court  is 
not  under  the  same  obligations  to  guard  such  secrets,  though  in  the 
breast  of  an  attorney." 

MouNTENEY,  B. :  "Mr.  Recorder  hath  very  properly  mentioned  the 
foundation  .  .  .  that  an  increase  of  legal  business,  and  the  inabilities 
of  parties  to  transact  that  business  themselves,  made  it  necessary  for 


512  PRIVILEGED  COMMUNICATIONS.  No.  498. 

them  to  employ  (and  as  the  law  properly  expresses  it,  ponere  in  loco 
sua)  other  persons  who  might  transact  that  business  for  them;  that  this 
necessity  introduced  with  it  the  necessity  of  what  the  law  hath  very 
justly  established,  an  inviolable  secrecy  to  be  observed  by  attornies,  in 
order  to  render  it  safe  for  clients  to  communicate  to  their  attornies  all 
proper  instructions  for  the  carrying  on  those  causes  which  they  found 
themselves  under  a  necessity  of  intrusting  to  their  care.  If  this  original 
principle  be  kept  constantly  in  view,  I  think  it  cannot  be  difficult  to  deter- 
mine either  the  present  question  or  any  other  which  may  arise  upon 
this  head ;  for  upon  this  principle,  whatever  either  is,  or  by  the  party 
concerned  can  naturally  be  supposed,  necessary  to  be  communicated  to 
the  attorney  in  order  to  the  carrying  on  any  suit  or  prosecution  in 
which  he  is  retained, — that  the  attorney  shall  inviolably  keep  secret.  On 
the  other  hand,  whatever  is  not,  nor  can  possibly  by  any  man  living  be 
supposed  to  be,  necessary  for  that  purpose,  that  the  attorney  is  at  liberty, 
and  in  many  cases — as  particularly,  I  think,  in  the  present  case — the 
attorney  ought  to  disclose.  .  .  .  For  God's  sake  then  let  us  consider, 
what  will  be  the  consequence  of  the  doctrine  now  laid  down  [by  the 
defendant]  and  so  earnestly  contended  for,  that  such  a  declaration  made 
by  any  person  to  his  attorney,  ought  not  by  that  attorney  to  be  proved? 
A  man  (without  any  natural  call  to  it)  promotes  a  prosecution  against 
another  for  a  capital  offence ;  he  is  desirous  and  determined,  at  all  events, 
to  get  him  hanged;  he  retains  an  attorney  to  carry  on  the  prosecution, 
and  makes  such  a  declaration  to  him  as  I  have  before  mentioned  (the 
meaning  and  intention  of  which,  if  the  attorney  hath  common  under- 
standing about  him,  it  is  impossible  he  should  mistake) ;  he  happens  to 
be  too  honest  a  man  to  engage  in  such  an  affair ;  he  declines  the  prose- 
cution ;  but  he  must  never  discover  this  declaration,  because  he  was  re- 
tained as  an  attorney.  This  prosecutor  applies  in  the  same  manner  to 
a  second,  a  third,  and  so  on,  who  still  refuse,  but  are  still  to  keep  this 
inviolably  secret.  At  last,  he  finds  an  attorney  wicked  enough  to  carry 
this  iniquitous  scheme  into  execution.  And  after  all,  none  of  these 
persons  are  to  be  admitted  to  prove  this,  in  order  either  to  bring  the 
guilty  party  to  condign  punishment,  or  to  prevent  the  evil  consequences 
of  his  crime  with  regard  to  civil  property.  Is  this  law?  Is  this  rea- 
son ?  I  think  it  is  absolutely  contrary  to  both.  .  .  .  The  declaration  now 
offered  to  be  proved  is  of  that  nature,  and  so  highly  criminal,  that,  in 
my  opinion,  mankind  is  interested  in  the  discovery;  and  whoever  it  was 
made  to,  attorney  or  not  attorney,  lies  under  an  obligation  to  society  in 
general,  prior  and  superior  to  any  obligation  he  can  lie  under  to  a  par- 
ticular individual,  to  make  it  known." 

Dawson,  B.  :  "Nothing  that  came  properly  to  the  knowledge  of  the 
attorney  in  defence  of  his  client's  cause  ought  to  be  revealed.  I  will 
suppose  an  unknowing  man  to  have  twenty  deeds  by  him,  and  he  de- 
livers them  all  to  his  attorney  to  see  which  were  relative  to  the  suit; 
he  looks  them  over,  and  finds  not  half  of  them  to  be  relative  thereto. 
I  apprehend  the  attorney  is  not  compellable  to  disclose  the  contents  of 


No.  499.  ATTORNEY  AND  CLIENT.  513 

any  one  of  those  deeds;  neither  do  I  think  it  necessary  to  him:  and  I 
think,  the  Court  must,  in  this  case  be  satisfied,  first,  that  what  came  to 
this  man's  knowledge  was  not  necessary  to  his  client's  affairs;  and  in 
the  next  place,  that  the  client  could  not  think  it  necessary.  .  .  .  The 
motive  for  carrying  on  the  prosecution  against  the  plaintiff  is  said  to 
be,  because  he  has  a  right  to  the  estate  the  defendant  was  in  possession 
of.  Can  any  man  think  that  this  was  necessary  to  tell  the  attorney,  or 
that  the  defendant  could  have  thought  it  so?  What  was  necessary,  or 
what  a  man  might  have  thought  necessary,  ought  not  to  be  disclosed. 
But  if  the  defendant  in  this  case  had  gone  anything  further,  he  has 
trusted  him,  not  as  an  attorney,  but  as  an  acquaintance."^ 


GREENOUGH  v.  GASKELL    (1833). 
/  Myl.  &  K.  98,  103. 

Bill  to  require  the  surrender  and  cancellation  of  a  note  improperly 
obtained  by  the  defendant  from  one  Darwell.  The  defendant,  by  his 
answer,  wholly  denied  that  the  note  in  question  had  been  exe- 
*"^  cuted  by  the  plaintiffs  at  his  instance  or  entreaty,  but  he  ad- 
mitted that  he  had  been  aware  of  the  situation  and  circumstances  of 
Darwell  at  the  time  of  the  transaction  impeached  by  the  bill;  and,  in 
answer  to  the  charge  to  that  effect,  he  also  admitted  that  he  had  in  his 
possession  divers  books,  &c.,  containing  entries  and  memorandums,  and 
also  divers  papers  and  letters,  relative  to  the  matters  in  the  bill  men- 
tioned; and  he  set  forth  a  list  of  them  in  a  schedule.  But  he  stated 
that  such  entries  and  memorandums  were  made,  and  such  papers  and 
letters  were  written,  or  received  by  him  in  his  capacity  of  confidential 
solicitor  for  Darwell;  for  whom  he  had  been  professionally  engaged 
for  a  number  of  years. 

Brougham,  L.  C.  :  "The  foundation  of  this  rule  is  not  diflScult  to 
discover.  It  is  not  (as  has  sometimes  been  said)  on  account  of  any  par- 
ticular importance  which  the  law  attributes  to  the  business  of  legal  pro- 
fessors, or  any  particular  disposition  to  afford  them  protection  (though 
certainly  it  may  not  be  very  easy  to  discover  why  a  like  privilege  has 
been  refused  to  others,  and  especially  to  medical  advisers).  But  it  is 
out  of  regard  to  the  interests  of  justice,  which  cannot  be  upholden,  and 
to  the  administration  of  justice,  which  cannot  go  on  without  the  aid  of 
men  skilled  in  jurisprudence,  in  the  practice  of  the  courts,  and  in  those 
matters  affecting  rights  and  obligations  which  form  the  subject  of  all 
judicial  proceedings.  If  the  privilege  did  not  exist  at  all,  every  one 
would  be  thrown  upon  his  own  legal  resources.  Deprived  of  all  pro- 
fessional assistance,  a  man  would  not  venture  to  consult  any  skillful 
person,  or  would  only  dare  to  tell  his  counsellor  half  his  case.  .  .  . 
It  does  not  appear  that  the  protection  is  qualified  by  any  reference  to 

I — Compare  the  authorities  cited  in  W.,   §§  2298,   2310. 


514  PRIVILEGED  COMMUNICATIONS.  No.  499. 

proceedings  pending  or  in  contemplation.  ...  If  this  protection  were 
confined  to  cases  where  proceedings  had  commenced,  the  rule  would 
exclude  the  most  confidential,  and  it  may  be  the  most  important,  of  all 
communications; — those  made  with  a  view  of  being  prepared  either  for 
instituting  or  defending  a  suit,  up  to  the  instant  that  the  process  of 
the  Court  issued.  If  the  protection  were  confined  to  proceedings  begun 
or  in  contemplation,  then  every  communication  would  be  unprotected 
which  a  party  makes  with  a  view  to  his  general  defense  against  attacks 
which  he  apprehends,  although  at  the  time  no  one  may  have  resolved  to 
assail  him.  But  were  it  allowed  to  extend  over  such  communications 
the  protection  would  be  insufficient  if  it  only  included  communications 
more  or  less  connected  with  judicial  proceedings;  for  a  person  often- 
times requires  the  aid  of  professional  advice  upon  the  subject  of  his 
rights  and  liabilities  with  no  reference  to  any  particular  litigation,  and 
without  any  other  reference  to  litigation  generally  than  all  human  affairs 
have  in  so  far  as  every  transaction  may  by  possibiHty  become  the  subject 
of  judicial  inquiry. "^ 


HATTON  V.  ROBINSON    (1833). 
14  Pick.  416,  422. 

Trespass  for  taking  two  mares,  a  chaise  and  chaise  harness.  The 
defendant  pleaded  the  general  issue,  and  filed  a  brief  statement  alleg- 
ing that  he  attached  them  as  the  property  of  David  Winch.  At 
^""  the  trial,  before  Wilde,  J.,  it  appeared,  that  the  plaintiff  claimed 
the  property  under  a  bill  of  sale  from  Winch.  The  defendant  to  prove 
the  bill  of  sale  fradulent,  offered  in  evidence  the  deposition  of  Samuel 
Ames,  Esq.,  a  counsellor  at  law  in  Providence.  The  plaintiff  objected 
to  the  admission  of  the  deposition,  on  the  ground  that  Mr.  Ames  was 
employed  in  the  transaction  testified  to  by  him,  as  the  attorney  of  Winch 
and  the  plaintiff,  and  that  all  he  knew  in  relation  to  it,  was  communicated 
to  him  in  that  capacity.  The  only  evidence  that  Mr.  Ames  was  so 
employed,  was  the  deposition  in  question.  Mr.  Ames,  in  his  deposition, 
testified  that  on  April  6,  1831,  Winch  desired  him  to  draw  a  convey- 
ance of  certain  property  attached  to  the  Fenner  tavern  stand  in  Provi- 
dence, to  the  plaintiff,  to  whom  he  had  contracted  to  sell  it;  that  he 
accordingly  drew  the  conveyance ;  that  his  impression  was,  that  a  small 
portion  of  the  consideration  was  to  be  paid  very  soon,  but  that  the 
residue,  amounting  to  the  sum  of  $400  or  $500,  was  secured  to  Winch 
by  the  plaintiff's  negotiable  note  indorsed  by  one  Wesson,  which  note 
also  the  deponent  drew.  The  deponent  further  testified,  that  on  April 
30,  183 1,  Winch  again  called  upon  him,  and  informed  him,  that  he  was 
about  to  leave  Providence  with  the  purpose  of  residing  in  the  State 
of  New  York;  that  he  owed  old  debts  in  Massachusetts  to  a  much 
larger   amount  than  the  value   of  his  property;  that  he  also   owed  a 

2 — Compare   the  authorities  cited  in   W.,   §§  2294,   2295. 


No.  500.  ATTORNEY  AND  CLIENT.  515 

considerable  sum  in  Providence,  for  which  he  was  recently  indebted ; 
that  his  intention  was,  to  convert  what  salable  property  he  had,  par- 
ticularly a  pair  of  horses  and  a  carriage  or  carriages,  into  money,  as 
soon  as  he  could  obtain  a  fair  price  for  them,  and  with  the  proceeds 
to  pay  his  Providence  creditors ;  and  that  in  the  meantime  his  Massa- 
chusetts creditors  pressed  him,  and  as  soon  as  he  left  Rhode  Island 
for  New  York,  would  undoubtedly  attach  and  sacrifice  his  horses  and 
carriage  or  carriages.  The  deponent  further  testified,  that  he  under- 
stood Winch,  that  he  had  left  them  with  the  plaintiff  for  sale,  with 
the  intention  from  the  proceeds  from  the  sale,  to  give  preference  to,  and 
pay  his  Providence  creditors,  and  that  he  wished  to  cover  them,  as 
far  as  possible,  from  attachment  by  his  Massachusetts  creditors ;  that, 
on  the  whole,  as  Winch  had  come  from  Massachusetts  poor,  and  the 
credits  he  had  obtained  in  Providence  had  been  the  means  of  his  acquir- 
ing what  little  property  he  had,  the  deponent  thought  his  preference  of 
his  Providence  creditors  would  not  be  unfair,  and  accordingly  informed 
him,  that  he  was  willing  to  draw  a  mortgage  deed  from  him  of  the 
horses,  carriage  or  carriages,  to  any  person  he  might  select ;  that  Winch 
said,  that  he  had  perfect  confidence  in  the  plaintiff,  and  that  the  de- 
ponent accordingly  drew  such  a  mortgage  deed.  .  .  . 

Merrick  and  Bottom  for  the  plaintiff:  ".  .  .  Where  counsel  are  con- 
sulted as  to  what  will  be  the  legal  effect  and  consequences  of  any  par- 
ticular instrument  of  conveyance,  they  are  as  much  guarding  the  rights 
of  their  clients  and  protecting  their  property,  as  when  litigation  is 
actually  in  progress ;  and  communications  made  by  clients,  in  both  cases, 
are  entitled  to  the  same  privileges.  The  current  of  the  decisions,  and 
all  the  elementary  treatises,  put  the  rule  strictly  on  the  ground  of 
professional  consultation.  They  do  not  limit  it  to  consultations  on 
questions  in  actual  or  immediately  contemplated  litigation.  It  is  the 
character  of  the  communication  which  is  to  be  considered."  .  .  . 

Newton,  Lincoln  and  Child  for  the  defendant:  ".  .  .  It  is  a  forced 
construction  of  this  deposition  to  infer  from  it,  that  any  application 
was  made  by  Winch  for  legal  advice  in  the  defence  of  any  suit.  None 
was  then  pending,  and  it  was  only  among  the  events  which  were  pos- 
sible, that  any  suits  would  be  instituted.  Winch  certainly  could  not 
have  asked  legal  advice,  whether  his  creditors  could  commence  suits. 
It  was  not  his  purpose  to  defend,  if  they  were  commenced.  The  con- 
veyance of  property  would  not  affect,  in  any  manner,  the  right  of  any 
creditor  to  recover  judgment  for  his  debt,  although  it  might  defeat  the 
collection  of  it.  It  does  not  appear,  that  Winch  asked  legal  advice  of  Mr. 
Ames,  on  any  subject,  or  that  the  latter  gave  any  legal  advice :  and  the 
burden  of  proof  is  on  the  plaintiff,  to  show  that  Mr.  Ames  acted  in  a 
professional  capacity.  The  business  could  have  been  done  as  well  by 
any  other  person  as  by  an  attorney  at  law."  .  .  . 

Shaw,  C.  J. :  "The  only  question  for  the  Court  in  the  present  case, 
is,  whether  the  deposition  of  Mr.  Ames  was  properly  admitted  in  evi- 
dence;  and  this  depends  upon  the  further  question,  whether  the  matters 


516  PRIVILEGED  COMMUNICATIONS.  No.  500. 

testified  to  by  him,  were  to  be  considered  as  within  the  rule  of  privi- 
leged communications.  .  .  .  There  are  many  cases,  in  which  an  attor- 
ney is  employed  in  transacting  business,  not  properly  professional,  and 
where  the  same  might  have  been  transacted  by  another  agent.  In 
such  case  the  fact  that  the  agent  sustains  the  character  of  an  attorney, 
does  not  render  the  communications  attending  it,  privileged ;  and  they 
may  be  testified  to  by  him,  as  by  any  other  agent.  .  .  .  We  cannot  per- 
ceive that  the  communications  were  made  to  [the  attorney,  Mr.  Ames,] 
by  Winch  with  the  purpose  of  instructing  him  in  any  cause,  or  engag- 
ing him  in  the  conduct  of  any  professional  business,  or  of  obtaining 
any  legal  advice  or  opinion.  If  the  disclosure  of  his  views  and  pur- 
poses, in  the  conveyance  of  property  proposed  to  be  drawn,  was  not, 
as  stated  in  some  of  the  books,  a  mere  gratis  dictum,  the  only  purpose 
seems  to  have  been  to  satisfy  Mr.  Ames'  mind,  and  remove  any  scruple 
that  he  might  entertain,  as  to  the  character  of  the  transaction,  and  to 
convince  him,  that  whatever  might  be  the  legal  character  of  the  act, 
it  was  not  intended  with  moral  turpitude.  It  did  satisfy  him,  that  he 
was  not  to  be  engaged  in  a  conspiracy  to  cheat,  and  induced  him  to 
consent  to  draw  the  deed.  Here  was  no  legal  advice  asked,  no  opinion 
requested  as  to  the  effect  and  operation  of  such  a  conveyance  in  point 
of  law,  and  none  given.  We  are  therefore  necessarily  brought  to  the 
conclusion,  that  either  these  disclosures  were  made  without  any  par- 
ticular motive,  or  if  there  was  a  purpose,  connected  with  the  proposed 
draft,  it  was  to  satisfy  Mr.  Ames's  mind,  upon  a  point  of  fact,  not  for 
the  information  of  his  own  in  point  of  law,  and  in  either  event  they 
are  not  to  be  deemed  privileged  communications,  which  the  witness  was 
prohibited   from  disclosing."^ 


BARNES  V  HARRIS    (1851). 

7  Ciish.  5/(5. 

Action  of  assumpsit  on  an  account  annexed  to  the  writ.    At  the  trial 
in  the  court  of  common  pleas,  before  Hoar,  J.,  the  defendant  called 
Stephen  Holman,  as  a  witness,  and  proposed  to  inquire  of  him 
"  as  to  a  conversation  between  him  and  the  plaintiff,  which  took 

place  in  the  office  of  Milton  Whitney,  Esq.,  an  attorney  of  this  court, 
before  the  commencement  of  the  suit.  The  witness  having  stated,  that 
at  the  time  of  the  conversation,  he  was  a  student  at  law  in  Whitney's 
office;  that  the  plaintiff  called  there  for  professional  advice;  that  he 
did  not  know  but  the  plaintiff  supposed  him  to  be  Mr.  Whitney;  and 
that  the  conversation  was  relative  to  the  plaintiff's  claims  against  the 
defendant,  as  to  which  the  plaintiff  consulted  the  witness;  the  judge 
ruled,  that  it  was  not  competent  for  the  witness  to  testify  as  to  any 
statements  then  made  to  him  by  the  plaintiff,  for  the  purpose  of  obtain- 

3 — Compare  the  authorities  cited  in  W.,  §  2297. 


No.  502.  ATTORNEY  AND  CLIENT.  517 

ing  professional  advice.  Whitney  was  not  present  at  the  conversation; 
he  was  not  the  attorney  of  the  plaintiff  in  this  suit;  and  it  did  not 
appear  that  the  plaintiff  had'  ever  before  consulted  him.  The  jury  found 
a  verdict  for  the  plaintiff,  and  the  defendant  alleged  exceptions.  .  .  . 
Metcalf^  J. :  "The  testimony  of  the  witness  was  excluded,  prob- 
ably, either  on  the  ground  that  he  was  a  student  in  an  attorney's  office, 
and  therefore  the  communication  made  to  him  by  the  plaintiff  was 
privileged,  as  if  made  to  the  attorney  himself,  or  on  the  ground  that 
the  plaintiff  supposed  that  the  witness  was  an  attorney  at  law.  But, 
in  our  judgment,  the  testimony  ought  not  to  have  been  excluded  on 
any  ground.  .  .  .  Lord  Brougham  says,  (i  Mytne  &  Keen,  103,)  the 
rule  is  established  out  of  regard  to  the  interests  of  justice,  which  can- 
not be  upholden,  and  to  the  administration  of  justice,  which  cannot  go 
on,  without  the  aid  of  men  skilled  in  jurisprudence,  in  the  practice  of  the 
courts,  and  in  those  matters  affecting  rights  and  obligations,  which  form 
the  subject  of  all  judicial  proceedings.  If  the  privilege  did  not  exist  at 
all,  every  one  would  be  thrown  upon  his  own  legal  resources.'  Such  being 
the  reason  of  the  rule  which  protects  communications  made  to  attorneys 
and  counsel,  the  Court  should  apply  the  rule  to  those  cases  only  which 
fall  within  that  reason.  And  it  is  truly  said,  in  Harrison  on  Ev.  36,  that 
as  the  rule  operates  to  the  exclusion  of  evidence,  the  Courts  have  always 
felt  inclined  to  construe  it  strictly  and  narrow  its  effect.  W'e  believe  the 
rule  is  correctly  stated  in  Foster  v.  Hall,  12  Pick.  93;  viz.  that  it  'is 
confined  strictly  to  communications  to  members  of  the  legal  profession, 
as  barristers  and  counsellors,  attorneys  and  solicitors,  and  those  whose 
intervention  is  necessary  to  secure  and  facilitate  the  communication 
between  attorney  and  client ;  as  interpreters,  agents,  and  attorneys' 
clerks.'  The  witness,  in  this  case,  was  not  of  the  legal  profession,  and 
though  he  was  a  student  in  an  attorney's  oflfice,  yet  it  does  not  appear 
that  he  was  either  the  attorney's  agent  or  clerk  for  any  purpose.  Many 
students  at  law  are  never  either  the  one  or  the  other.  Some  of  the 
members  of  this  court  never  were.  H  the  plaintiff's  communication  was 
made  to  the  witness  in  his  capacity  as  a  student  in  Mr.  Whitney's 
office,  it  is  not  privileged;  Andrews  v.  Solomon  (Peters  C.  C.  356); 
nor  if  it  was  made  on  the  supposition  that  the  witness  was  Mr.  Whit- 
ney or  some  other  attorney  at  law  (Fountain  v.  Young,  6  Esp.  R.  ii3)."'* 


THOMPSON  V.  KILBORNE    (1856). 

28  Vt.  750,  757- 

Covenant   for  the  alleged  breach  by  the  defendant  of  his  contract 
under  seal,  dated  May  8th,   1844,  agreeing,  among  other  things,  to  fur- 
nish for  the  use  of  the  plaintiff,  for  a  hop-yard,  for  the  period 
of  nine  years  thereafter,  five  acres  of  the  defendant's  land.  .  .  . 
The  only  exception  reserved  by  the  plaintiff,  upon  that  branch  of  the 

4 — Compare  the   authorities  cited   in   W.,   §§  2300,   2301. 


518  PRIVILEGED  COMMUNICATIONS.  ,         No.  502. 

case  which  related  to  the  alleged  refusal  of  the  defendant  to  permit 
the  plaintiff  to  occupy  the  yard  after  the  fall  of  1847,  was  in  reference 
to  the  admissibility  of  a  part  of  the  deposition  of  Elbridge  D.  Johnson, 
formerly  of  Derby,  but  now  residing  in  Peoria,  Illinois,  offered  by  the 
defendant,  which  the  plaintiff  claimed  related  to  a  communication  made 
by  him  to  the  said  Johnson,  as  his  counsel ;  the  part  of  the  deposition 
objected  to,  and  that  part  in  reference  to  the  deponent's  understanding 
of  the  relation  in  which  he  stood  to  the  plaintiff,  being  as  follows : 
"The  said  Thompson  came  to  me  at  my  office  and  had  considerable  chat 
about  his  contract  with  the  said  Kilborne.  Whether  the  conversation 
was  professional,  or  semi-professional,  or  neither,  I  am  at  a  loss  to  de- 
termine, but  I  will  state  the  circumstances,  and  leave  the  matter  to  be 
determined  by  higher  authority.  Thompson  introduced  the  conversa- 
tion by  inquiring  about  his  contract  with  Kilborne  for  carrying  on  the 
hop-yard.  I  am  unable  to  state  its  exact  purport,  but  am  able  to  state 
the  substance.  He  inquired  if  he  could  not  make  use  of  something 
which  had  occurred  between  him  and  Kilborne  to  avoid  the  effect  of 
his  contract  to  carry  on  the  yard.  I  am  unable  to  state  whether  it  was 
something  Kilborne  had  said  or  done  in  the  matter,  and  am  unable 
to  say  what  reply  I  gave  him,  but  he  then  said  he  should  not  carry 
on  the  yard  again,  and  he  thought  the  matter  he  stated  would  protect 
him  irn  so  doing,  and  he  inquired  of  me  if  I  did  not  think  so.  The  said 
Thompson  intended  to  draw  from  me  a  legal  opinion,  I  have  no  doubt, 
and  that  he  did  not  expect  or  intend  to  pay  anything  for  it,  I  have  as  little 
doubt;  that  I  stated  to  him  what  was  the  law  applicable  to  the  case 
stated,  is  probable,  but  that  I  did  not  expect  to  receive  any  compensa- 
tion for  counsel,  or  intend  to  charge  anything,  is  quite  certain.  I  should 
state,  perhaps,  that  Mr.  Thompson  was,  when  I  knew  him,  a  man  some- 
what given  to  legal  reflections,  and  was  supposed  to  have  a  slight  taste 
for  litigation,  and  was  seldom  without  a  controversy  on  hand,  or  one 
in  prospect;  and  we  were  for  many  years  neighbors  and  on  friendly 
terms,  and  I  dare  say  we  have  had  some  hundred  just  such  legal  con- 
versations as  the  one  above  detailed,  about  his  numerous  controversies, 
which  were  all  equally  fruitless  of  fees,  except  when  he  got  into  a  suit, 
when  he  usually  employed  me  as  counsel,  and  paid  me,  not  what  I 
charged  for  my  services,  but  what  we  agreed  upon  whenever  we  got 
through  with  the  not  over  agreeable  process  of  a  settlement  of  our 
accounts.  It  is  possible,  also,  that  the  freedom  with  which  I  was  accus- 
tomed to  converse  with  him  on  legal  subjects,  and  without  charge, 
may  have  led  him  into  the  habit  of  getting  his  law  for  nothing  from 
me,  at  this  and  other  times;  at  all  events,  it  is  quite  as  much  my  fault 
as  his  that  I  am  not  able  to  decide  whether  the  conversation  in  ques- 
tion was  a  privileged  communication  or  not.  I  am  unable  to  say 
whether  he  understood  our  conversation  as  a  consultation,  or  just  a 
chat  to  fortify  a  determination  he  had  already  taken  about  the  business. 
I  may  say  that  a  different  locality  has  taught  me  a  much  more  sensible 
practice  in  such  matters,  and  further  deponent  saith  not."     The  court 


JS'o.  503.  JURORS.  519 

allowed  the  deposition  to  the  point  above  designated  to  be  read  to  the 
jury,  to  which  the  plaintiff  excepted.  .  .  . 

Redfield,  Ch.  J. :  "The  first  question  made  in  the  present  case  is, 
whether  the  plaintifif's  communication  to  Johnson  was  under  the  confi- 
dence of  the  relation  of  counsel  and  client.  It  seems  to  us  not  to  be 
of  that  character.  There  was  no  retainer,  and  nothing  to  show  that  the 
plaintiff  sought  the  advice  with  any  view  to  regulate  his  future  con- 
duct, in  regard  to  a  pending  or  expected  litigation.  And,  had  any 
retainer  been  charged,  there  is  every  reason  to  believe  the  plaintiff 
could  justly  have  resisted  the  claim  upon  the  facts  stated  by  Johnson. 
And,  had  Johnson,  the  next  hour,  received  an  application  for  counsel, 
and  retainer,  upon  the  other  side,  no  one  can  question  his  being  at  full 
liberty  to  engage.  This  anomalous  relation  testified  to  in  the  deposi- 
tion, and  which  seems  so  much  to  puzzle  Johnson,  and  which  he  so 
justly  deprecates,  certainly  grows  out  of  a  too  common  facility,  upon 
the  part  of  the  profession,  in  this  State,  to  undervalue  their  profes- 
sional and  official  character,  as  sworn  officers  of  the  highest  judicial 
tribunal  in  the  State.  The  practice  of  giving  advice,  upon  legal  sub- 
jects, without  study  and  examination,  and  without  corresponding  pay, 
and  a  distinct  retainer,  is  certainly  a  vicious  one.  The  practice  of  the 
profession  of  giving  street  advice  misleads  the  general  opinion  in 
regard  to  the  value  and  dependence  upon  such  advice.  It  would  no 
doubt  be  better  for  the  profession,  and  their  clients  both,  if  all  profes- 
sional advice,  in  regard  to  the  prosecution  and  defense  of  claims,  were 
given  in  writing,  as  it  is  in  many  places,  and  both  parties  are  thereby 
put  under  the  proper  responsibility  in  regard  to  it,  the  one  to  pay  for 
it  and  the  other  to  make  it  hold  good,  or  to  show,  at  least,  that  it  was 
not  notoriously  bad.  But,  at  all  events,  we  cannot  regard  a  conversa- 
tion of  this  loose  and  indefinite  character  as  entitled  to  the  protection 
of  professional  confidence."'" 


COVEXEY  V.  TANNAHILL    (1841). 
/  Hill  N.  Y.  33,  35- 
Motion   by   the   defendants,   Edwards   &  McKibben,   to   set   aside   a 
report  of  referees  made  in  favor  of  the  plaintiff.     The  defendants  were 
partners  under  the  name  of  John  Tannahill  &  Co.,  and,  in  this 
""*      action  of   assumpsit,   the  plaintiff  gave  in   evidence   an   account 
stated  in  writing  on  the  3d  September,  1839,  with  an  acknowledgment 
at  the  end,  signed  John  Tannahill  &  Co.,  in  the  handwriting  of  Tanna- 
hill. by   which   the   balance  was   admitted   to   be   due   the   plaintiff   of 
$734-36.     The  defendants  .  .  .  called    Seth   E.    Sill   as   a  witness,   who 
acted  as  counsel  for  the  plaintiff  on  the  hearing,  and  put  to  him  the 
following  questions:     i.     Whether  he  was  present  when  the  account 
stated  was  signed;  2.  If  so,  when  and  where  it  was  signed,  and  who 
was  present ;  3.  When  he  first  saw  the  said  account  stated,  and  whether 

5 — Compare  the   authorities  cited   in   W.,   §  2303. 


520  PRIVILEGED  COMMUNICATIONS.  NO.  503. 

the  acknowledgment  of  a  settlement  and  balance  due  was  endorsed  on 
the  account  when  he  first  saw  it.  To  which  questions  the  witness  re- 
plied, that  all  his  knowledge  of  the  writing  had  been  obtained  by  him 
as  counsel  in  this  cause,  and  that  he  could  not  answer  the  questions 
without  violating  the  confidence  reposed  in  him  by  his  client  as  counsel 
in  the  cause.  The  referees  decided  that  the  witness  should  not  answer 
the  questions  put  to  him.  .  .  . 

Bronson^  J. :  ''Confidential  communications  between  attorney  and 
client,  concerning  the  matter  to  which  the  retainer  relates,  are  not  to 
be  disclosed  in  court,  unless  the  client  waives  his  privilege.  The  mode 
in  which  the  information  is  communicated — whether  by  an  oral  state- 
ment of  facts,  or  by  delivering  a  written  instrument — cannot  be  impor- 
tant. The  principal  is  the  same  in  whatever  way  the  information 
passes.  The  policy  of  the  law  allows  a  man  to  make  the  best  defence 
in  his  power.  Whatever  may  be  his  delinquency,  he  is  permitted  to 
confer  freely  with  his  counsel,  and  to  place  in  his  hands  any  paper 
touching  the  matter  in  question,  without  the  peril  of  having  his  con- 
fidence betrayed  under  the  forms  of  law.  The  attorney  may  be  called 
to  prove  the  existence  of  a  paper,  and  that  it  is  in  his  possession,  for 
the  purpose  of  enabling  the  other  party  to  give  parol  evidence  of  its 
contents.  But  he  cannot  be  compelled  to  produce  or  disclose  the  con- 
tents of  a  paper  which  has  been  deposited  with  him  by  his  client.  .  .  . 

"This  privilege  of  the  client  does  not  extend  to  every  fact  which 
the  attorney  may  learn  in  the  course  of  his  employment.  There  is  a 
difference,  in  principle,  between  communications  made  by  the  client, 
and  acts  done  by  him  in  the  presence  of  the  attorney.  It  may  be_,  and 
undoubtedly  is,  sound  policy  to  close  the  attorney's  mouth  in  relation 
to  the  former,  while  in  many  cases  it  would  be  grossly  immoral  to  do 
so  in  relation  to  the  latter.  ...  I  will  not  undertake  to  say  how  far 
the  distinction  between  the  communications  and  the  acts  of  the  client 
may  extend ;  but  there  can  be  no  good  reason  for  excluding  the  attor- 
ney when  he  has  witnessed  a  transaction  in  the  way  of  business  between 
his  client  and  a  third  person ;  as  the  adjustment  of  an  account,  the 
execution  of  a  deed,  the  payment  of  a  sum  of  money,  the  giving  up  of 
securities,  or  the  like.  It  is  not  necessary  that  a  man  should  have  an 
attorney  to  witness  his  dealings  with  third  persons ;  and  if  one  is  called 
in,  I  can  see  no  reason  Vv'hy  he,  like  any  other  person  who  was  present, 
should  not  be  sworn  to  prove  what  was  done. 

"In  the  case  at  bar,  I  feel  no  difficulty  in  saying,  that  Mr.  Sill  should 
have  been  required  to  answer  the  first  two  questions  which  were  put  to 
him.  .  .  .  The  substance  of  the  first  two  questions  put  to  the  witness 
is — 'Was  you  present  when  the  account  stated  was  signed ;  when  and 
where  was  it  done,  and  who  was  present?'  .  .  .  The  meaning  of  the 
answer  is,  that  if  the  witness  was  present  and  saw  the  paper  signed, 
&c.  he  was  so  present  as  counsel  for  the  plaintiff.  The  case  then  comes 
to  this :  The  plaintiff,  in  adjusting  an  account  with  a  third  person,  and 
procuring  a  written  acknowledgment  of  a  balance  due,  calls  in  a  coun- 


No.  504.     ■  ATTORNEY  AND  CLIENT.  521 

sellor  at  law  to  witness  the  transaction;  and  the  question  is,  whether 
the  attorney  shall  be  permitted  to  speak  without  the  leave  of  his  client? 
Upon  that  question  I  cannot  entertain  a  doubt.  What  was  done  and 
said  between  plaintiff  and  Tannahill  in  the  way  of  business,  cannot  be 
turned  into  a  confidential  communication  between  attorney  and  client, 
merely  because  the  plaintiff  had  an  attorney  present  to  hear  and  see  what 
took  place.  No  secret  was  confided  to  the  attorney,  and  he  might  have 
been  required  to  answer,  not  only  when  and  where  the  account  was 
signed,  but  as  to  everything  that  was  done  and  said  between  the  plain- 
tiff and  Tannahill  on  that  occasion,  so  far  as  the  matter  would  be  per- 
tinent if  proved  by  any  other  witness.  If  any  communications  passed 
between  the  attorney  and  client  apart  from  Tannahill,  these  may  be 
privileged ;  but  nothing  else.  .  .  . 

"The  third  question  proposed  to  the  witness  was,  in  substance, 
'When  did  you  first  see  the  account  stated,  and  was  the  evidence  of  a 
settlement  endorsed  on  the  account  when  you  first  saw  it?'  Although 
the  question  does  not  necessarily  imply  so  much,  it  was  understood  on 
the  hearing  as  intended  to  draw  from  the  witness  an  admission  that  he 
had  seen  the  paper  in  the  hands  of  his  client,  or  received  it  from  him, 
in  a  different  state  or  condition  from  that  in  which  it  appeared  on  the 
trial.  If  such  was  the  aim  of  the  defendants  in  putting  the  question,  I 
think  the  referees  were  right  in  not  allowing  it  to  be  answered.  We 
have  already  seen,  that  the  attorney  cannot  be  compelled  either  to  pro- 
duce or  to  disclose  the  contents  of  a  paper  which  he  has  received  from 
his  client.  .  .  .  The  principle  is,  that  all  confidential  communications 
between  attorney  and  client,  whether  written  or  oral,  are  alike  privi- 
leged. If  the  plaintiff,  at  any  particular  time,  delivered  or  exhibited  the 
account  to  his  attorney  without  the  evidence  of  a  settlement  endorsed 
upon  it,  it  was  the  same  thing,  in  substance,  as  though  he  had  at  that 
time  told  him  verbally  that  he  had  an  account  in  that  plight ;  and  the 
one  form  of  communication  is,  I  think,  as  much  privileged  as  the 
other."^ 


MITCHELL'S  CASE  (1861). 
J2  Abb.  Pr.  249. 
Appeal  from  an  order  of  commitment  for  contempt.   Mr.  Mitchell  was 
an  attorney  and  counsellor-at-law,  and  was,  as   such,  retained  by,  and  act- 
ing for,  one  McKechnie,  who  was  the  defendant  in  an  action  brought 
by  J.  H.  McCunn  and  J.  Moncrief.  in  the  Court  of  Common  Pleas 
for  the  city  and  county  of  New  York,  to  recover  from  McKechnie  the 
possession  of  a  certain  lot  of  land  in  that  city.     Upon  the  trial  of  that 

6 — Ellenborough,   L.    C.   J.,  in   Rohson  v.  lense    is    as    privileged    as    another.       He 

Kemp,    5    Esp.    52,    55    (1803):      "The    act  cannot  be  said  to  be  privileged  as  to  what 

[of   destroying  a   power    of  attorney]    can-  he   hears,   but   not   to   what   he  sees,   where 

not  be  stripped  of  the  confidence  and  com-  the  knowledge  acquired  as  to  both  has  been 

munication    as    an    attorney,     the     witness  derived   from  his  situation  as  an  attorney." 

being   then   acting   in   that  character.      One  L.    C.    Brougham,   in    Greenough   v.    Qas- 


522  PRIVILEGED  COMMUNICATIONS.  No.  504. 

action  before  his  honor  Judge   Brady,  one   Bettz  was  examined  as  a 
witness  for  the  defendant,  and  upon  examination  testified  that  he,  Bettz, 
claimed  the  title  to  the  land,  that  the  defendant  McKechnie  was  his 
tenant,  and  that  he,  Bettz,  was  defending  the  action  as  landlord  of  the 
defendant ;  and  being  asked  whether  he  had  in  his  possession  any  old 
deeds,  leases,  or  assignments  relating  to  the  land,  he  answered  that  he 
had  received   from  his  grantors  a  certain  old   lease   and  other  papers, 
which  he  had  kept  in  his  possession  until  a  few  days  before  the  trial, 
when  he  had  delivered  them  to  John  W.  Mitchell,  his  attorney,  and  the 
attorney  of  the  defendant  in  the  action ;  and  being  asked  to  produce  the 
said  old  lease  and  other  papers,  he  answered  that  he  was  unable  to  do 
so,  because  they  were  in  Mr.  Mitchell's  possession.     Mr.  Mitchell  was 
then  in  court,  acting  as  the  attorney  and  counsel  of  the  defendant  on 
the  trial.     He  was  thereupon  called  as  a  witness  by  the  plaintiffs,  and 
on   his  examination,  being  asked :   "Have   you   in   your  possession   any 
old  leases  or  deeds  relating  to  this  property,  placed  there  by  Mr.  Bettz  ?" 
replied,  that  he  had   some  papers  of  Mr.   Bettz's,  but  that  he  did  not 
know  what  they  were;  and  on  being  requested  by  the  Court  to  examine 
the  papers  and  see,  he  declined  to  do  so,  objecting  on  the  grounds  that 
he  was  privileged  from  testifying  as  to  such  matters,  they  having  come 
to  his  knowledge  from  his  client,  that  he  had  not  been  subpoenaed,  and 
that  he  had  had  no  notice  to  produce  the  papers.     During  a  brief  sus- 
pension of  the  proceedings  pending  this  examination^  Mr.  Mitchell  de- 
livered the  bundle  of  papers  to  Mr.  Bettz,  with  a  suggestion  that  he 
carry  them  to  the  office  of  his  counsel.     After  the  proceedings  were  re- 
sumed,   this    fact    appearing    upon    the    continued    examination    of    Mr. 
Mitchell,  the  plaintiffs  applied  for  an  attachment  for  contempt  against 
him;   but  it  was  finally  arranged  that  the  application  should  be   sus- 
pended, and  the  case  adjourned,   upon  a  stipulation  that  Mr.   Mitchell 
should  appear  on  the  adjourned  day  with  the  papers  in  the  same.     On 
the  same  day  Mr.   Mitchell  was  served  by  the  plaintiffs  with  subpoena 
duces  tecum,  requiring  him  to  produce  the  papers  on  the  adjourned  day. 
After  the  adjournment,  the  parties  appeared  on  the  27th  of  May,  and 
Mr.   Mitchell,   being  called  to  the  stand  and   asked  if  he  had  brought 
with  him  the  bundle  of  papers  in  question,  replied  that  he  had.     Being 
requested  to  look  at  them,  and  inform  the  Court  whether  they  had  re- 
lated to  the  lands  in  suit,  he  refused  to  do  so.     The  Court  thereupon 
ordered  the  witness  to  be  committed  for  ten  days  to  the  county  jail,  for 
contempt  of  court.     From  this  order  the  present  appeal  was  taken. 

Daly,  F.  J.:  "Before  the  important  change  in  the  law  requiring  a 
party  to  an  action  to  be  examined  as  a  witness  at  the  instance  of  the 
adverse  party,  the  general  principle  was  recognized,  that  no  one  in  a 

kell,    1    Myl.   &  K.    98,    104    (1833):    "[The  ing  been  brought  to  a  certain  place  by  the 

privilege  does  not  exist]    where  there  could  circumstance  of  his  being  attorney,    but   of 

not   be   said,    in    any  correctness   of  speech,  which    fact    any    other   man    if   there    would 

to    be    a    communication    at    all, — as    where,  have  been   equally  cognizant." 
for    instance,    a    fact,    something    that    was  Compare    the    authorities    cited    in     W., 

done,   became  known  to  him   from  his  hav-  §§  2306-2309. 


No.  504.  ATTORNEY  AND  CLIENT.  523 

court  of  law  could  be  compelled  to  give  evidence  against  himself.  .  .  . 
The  principle  of  exemption  was  applied  in  its  broadest  extent  to  parties 
to  actions  at  law,  who  could  not  be  compelled  to  give  evidence;  and  in 
respect  to  the  production  of  documentary  testimony,  as  a  party  to  an 
action  was  not  bound  to  give  evidence,  he  could  not  be  required  to 
produce  papers  to  be  used  against  him  as  evidence;  and  if  a  paper  had 
been  deposited  by  him  with  his  attorney,  the  attorney's  possession  was 
deemed  the  possession  of  the  party,  and  the  attorney  could  not  be  re- 
quired to  produce  it,  nor  even  any  other  person  having  the  temporary 
possession  of  it  in  right  of  the  party.  If  a  document  was  in  the  pos- 
session of  the  party  to  an  action  at  law,  or  in  the  possession  of  his 
attorney,  all  that  could  be  done  was  to  give  him  notice  to  produce  it ; 
and  if  he  failed  to  do  so,  the  other  party  was  at  liberty  to  give  secondary 
evidence  of  its  contents;  or  if  the  production  of  the  document  itself 
was  essential,  and  he  would  not  produce  it,  the  court  would,  if  he  was 
a  defendant,  strike  out  his  answer,  or  if  a  plaintiff,  nonsuit  him — a 
practice  introduced  into  courts  of  law  from  the  Court  of  Chancery. 
But  the  attorney  might  be  called,  and  was  bound  to  answer  whether  or 
not  he  had  the  paper  in  his  possession,  that  the  other  party  might  be 
enabled  to  give  secondary  evidence  of  its  contents,  which  he  could  not 
do  until  he  had  first  shown  that  he  was  unable  to  produce  it;  and 
though  the  attorney  could  not  be  required  to  disclose  the  contents  of 
the  paper,  his  examination  might  be  carried  at  least  so  far  as  to  show, 
with  reasonable  certainty,  that  the  document  in  his  possession  was  the 
one  respecting  which  the  other  party  proposed  to  give  evidence.  .  ,  . 
The  rule  was  also  well  established,  that  neither  a  party  nor  his  legal 
adviser  would  be  compelled  in  a  court  of  justice  to  disclose  the  confi- 
dential communication  which  had  passed  between  them  in  respect  to 
the  matter  upon  which  the  party  had  sought  professional  advice.  The 
principle  which  appears  to  have  been  recognized  as  far  back  as  the  days 
of  Elizabeth  (Cary's  R.,  127,  88,  89),  was  not  confined  to  courts  of  law, 
but  was  equally  acted  upon  by  the  Court  of  Chancery,  where  the  aid 
of  that  court  was  sought  to  compel  a  discovery  of  evidence.  On  an 
application  for  a  discovery,  a  court  of  equity  would  neither  compel  nor 
permit  a  solicitor  to  disclose  what  his  client  had  communicated  to  him 
in  professional  confidence,  nor  compel  the  production  of  letters  which 
had  passed  between  them,  or  through  intermediate  agents  upon  the  busi- 
ness, containing  or  asking  legal  advice  or  opinions,  nor  cases  prepared 
at  the  instance  at  the  client  for  the  opinion  of  counsel.  .  .  . 

"Such  was  the  state  of  the  law  before  the  enactment  of  the  pro- 
vision compelling  parties  to  action  to  be  examined  as  witnesses  at  the 
instance  of  an  adverse  party.  The  provision  has  brought  about  a  very 
material  change;  but  before  proceeding  to  inquire  into  the  effect  of  the 
enactment  upon  the  question  of  privilege,  it  is  very  plain,  that  by  the 
law,  as  it  stood  before  this  change  was  made,  the  conduct  of  Mr. 
Mitchell  amounted  to  a  contempt.  His  refusing  to  produce  papers  ac- 
knowledged to  be  in  his  possession,  for  the  reason  that  it  would  be  a 


524  PRIVILEGED   COMMUNICATIONS.  NO.  504. 

breach  of  his  privilege  as  attorney  for  the  defendant,  was  assuming  the 
right  of  determining  for  himself  the  question  of  privilege,  which  was 
not  his  province,  but  that  of  the  Court;  and  his  disobedience  of  the 
order  of  the  judge  to  produce  them,  was  a  very  plain  case  of  contempt, 
upon  the  authority  of  the  cases  that  have  been  cited.  It  was  a  con- 
tempt to  wilfully  deprive  the  court  of  the  means  of  determining  whether 
the  principle  of  protection  extended  to  the  papers  in  his  possession  or 
not,  and  it  would  not  be  the  less  a  case  of  contempt,  even  assuming  that, 
upon  what  was  stated  to  the  court,  a  case  of  privilege  was  shown;  for 
though  a  judge  should  decide  erroneously  upon  the  question  of  privi- 
lege, the  order  he  makes  is  nevertheless  to  be  obeyed.  If  it  were  other- 
wise, it  would  always  be  in  the  power  of  a  witness  to  withhold  evidence 
whenever  he  thought  fit  to  consider  himself  privileged. 

"But  Mr.  Mitchell  was  mistaken,  since  the  enactment  above  referred 
to,  in  supposing  that  he  had  any  privilege  at  all.  The  exemption  of 
the  attorney  was  never  regarded  as  his  personal  privilege,  but  as  exist- 
ing purely  for  the  protection  of  his  client.  .  .  He  was,  in  this  respect, 
in  the  language  of  Chief  Baron  Gilbert,  'considered  as  one  and  the  same 
person  with  his  client'  (Gilbert  on  Evidence,  138)  ;  and  if,  by  a  change 
in  the  law,  a  party  to  an  action  has  no  longer  any  privilege,  it  follows 
as  a  matter  of  course,  that  his  attorney  can  have  none.  The  provision 
in  question  declares,  that  'a  party  to  an  action  may  be  examined  as  a 
witness,  at  the  instance  of  the  adverse  party,  and  for  that  purpose  may 
be  compelled  to  testify  in  the  same  manner,  and  subject  to  the  same 
rules  of  examination,  as  any  other  witness.'  This  sweeps  away  the  rule 
of  the  common  law,  that  parties  to  actions  should  not  be  compelled  to 
give  evidence  against  themselves ;  and  every  privilege,  either  of  the 
party  or  of  his  attorney,  that  was  founded  upon  it,  is  gone.  I  suppose 
that  the  protection  that  was  extended  to  the  confidential  communica- 
tions between  attorney  and  client  remains  unaffected,  as  the  reason 
upon  which  that  rule  was  founded  Is  as  applicable  now  as  it  was  before ; 
but  with  this  exception,  a  party  to  an  action,  or  his  attorney,  are  no 
longer  privileged  to  withhold  testimony.  A  party  to  an  action  may  be 
compelled,  by  a  subpoena  duces  tecum,  to  produce  papers  and  documents, 
upon  the  trial,  to  be  read  in  evidence.  .  .  .When  the  Code,  therefore, 
declares  that  a  party  to  an  action  may  be  compelled  to  testify  in  the 
same  manner,  and  subject  to  the  same  rules  of  examination,  as  other 
witnesses,  it  is  obvious  that  the  meaning  is,  that  whatever  may  be  re- 
quired of  other  witnesses  may  be  required  of  him.  If  they  must  pro- 
duce books  and  papers,  so  must  he;  and  if  he  has  placed  them  in  the 
possession  of  his  attorney,  agent,  or  any  other  person,  the  one  who  has 
them  in  actual  custody  may  be  compelled  to  bring  them  before  the 
court,  to  be  used  as  evidence.  .  .  .  The  general  rule  of  courts  of  equity, 
that  wherever  the  client  may  be  called  upon  to  produce  papers,  the  at- 
torney, if  they  are  in  his  possession,  may  be  required  to  produce  them, 
is  the  proper  rule,  now  that  parties  to  actions  are  made  witnesses. 
"There  may  possibly  be  cases  in  which  the  deposit  of  a  document  with 


No.  505.  ATTORNEY  AND  CLIENT.  525 

an  attorney  for  advice  and  counsel,  may  bring  it  within  the  rule  of 
protection;  though  I  can  conceive  of  none,  if  the  client  would  himself 
be  bound,  if  he  had  it  in  his  possession,  to  produce  it  as  a  witness.  In 
this  case,  however,  there  could  be  no  pretence  that  the  papers  in  ques- 
tion were  left  by  the  witness  Bettz  with  Mitchell  for  professional  advice 
and  counsel,  as  Mitchell  declared  that  he  could  not  tell  what  they  were 
without  examining  them ;  nor,  when  first  interrogated  respecting  them, 
whether  he  had  them  in  his  possession  or  not,  without  looking  into  a 
bundle  of  papers  which  he  had  with  him  in  court.  He  was,  therefore, 
either  ignorant  of  their  nature  and  contents,  or  else  he  stated  what  was 
untrue.  We  are  bound  to  presume  the  former;  and  if  he  did  not  there- 
fore know  what  they  were,  the  fact  that  they  were  left  with  him  in 
professional  confidence  would  not  protect  them.  .  .  .  Mr.  Mitchell  did 
not  declare  that  the  papers  had  been  left  with  him  by  Bettz  for  profes- 
sional advice  or  assistance,  but  he  put  his  objection  on  the  ground  that 
to  produce  them  would  be  a  breach  of  his  privilege  as  attorney  for  the 
defendant.  They  were  not  placed  in  his  hands  by  the  defendant,  but 
by  the  witness  Bettz ;  and  if  any  privilege  could  exist,  it  must  have 
been  as  the  attorney  of  Bettz,  who,  as  the  owner  of  the  land,  was  de- 
fending the  suit  against  his  tenant;  but  he  had  no  privilege  either  as 
the  legal  adviser  of  Bettz,  or  as  the  attorney  of  the  defendant.  Either 
of  them  could  have  been  examined  as  witnesses,  and  required,  if  they 
had  the  papers  in  their  possession,  to  produce  them;  and  he  could  have 
no  privilege  where  they  had  none. 

"Upon  both  grounds,  therefore,  it  was  a  case  of  contempt:  first,  be- 
cause it  was  right  of  the  judge  to  determine  whether  there  was  any 
privilege  or  not,  and  the  duty  of  the  witness  to  be  governed  by  his 
decision ;  and  secondly,  because  he  had  no  privilege  entitling  him  to 
withhold  the  papers  in  his  possession  from  being  given  in  evidence."^ 


SKINNER  V.  GREAT  NORTHERN  R.  CO.  (1874). 
L.  R.  p  Exch.  2g8. 
.    Rule  to  vary  an  order  for  inspection,  made  at  Chambers  by  Keating, 
J.,  in  an  action  brought  to  recover  damages   for  personal   injuries   al- 
leged to  have  been  sustained  by  the  plaintiff  through  the  defend- 
""**      ants'  negligence,  whilst  he  was  traveling  as  a  passenger  on  their 
line.     The    document    of    which    inspection    was    ordered    comprised, 
amongst  others,  two  reports,  dated  respectively  the  15th  of  December, 
1873,   and  the  4th  of   February,   1874,  made  to  the  defendants  by  Mr. 
Jackson,  their  medical  officer,  after  examining  the  plaintiff.     The  ex- 
aminations to  which  the  reports   referred  were  held,   and  the  reports 
were  made,  before  any  action  had  been  commenced  or  any  communication 
made   by   the   plaintiff's   attorney,   but   after   a   claim    for  compensation 
had  been  made  by  the  plaintiff  and  in  consequence  of  that  claim.     The 

7 — Compare  the  authorities  cited   in  \V.,§  2307. 


526  PRIVILEGED  COMMUNICATIONS.  No.  505. 

rule  was  to  vary  the  order  by  excluding  these  reports.  Pritchard  shewed 
cause :  "The  decisions  in  the  Courts  of  Queen's  Bench  and  the  Com- 
mon Pleas,  with  respect  to  this  class  of  documents,  are  not  altogether 
consistent;  in  this  Court  there  is  no  reported  decision." 

Bramwell,  B.  :  "The  distinction  is  this ;  where  an  accident  happens, 
and  the  officials  of  the  company  in  the  course  of  tfteir  ordinary  duty, 
whether  before  or  after  action  brought,  make  a  report  to  the  company 
that  report  is  subject  to  inspection;  but  where  a  claim  has  been  made, 
and  the  company  "seek  to  inform  themselves  by  a  medical  examination 
as  to  the  condition  of  the  person  making  the  claim,  inspection  of  that 
report  is  not  granted ;  that  practice  has  been  constantly  followed  in  this 
Court.  .  .  ,  We  have  to  choose  between  the  decision  of  the  Queen's 
Bench  and  that  of  the  Common  Pleas,  and  we  follow  the  latter,  which 
is  in  conformity  with  the  practice  of  this  Court.  The  rule  must  be 
made  absolute."* 


COLEMAN'S  WILL  (1888). 
///  A^.  Y.  220,  226,  ip  N.  E.  yi. 
RuGER,  C.  J.:  "The  probate  of  the  will  of  William  Coleman,  de- 
ceased, was  contested  before  the  surrogate  by  his  widow  and  several 
of  his  children  and  grandchildren,  upon  the  ground  that  he  was 
"^  not  of  sound  mind  and  memory  at  the  time  of  its  execution,  and 
its  execution  was  procured  through  undue  influence,  fraud  and  intimi- 
dation exercised  over  him  by  Robert  S.  Coleman.  The  will  was  ad- 
mitted to  probate,  and  the  decree  was  affirmed  upon  appeal  by  the  Gen- 
eral Term.  .  .  .  The  most  material  question  in  the  case  arises  over  the 
exception  taken  by  the  contestants  to  the  admission  of  the  evidence  of 
the  witnesses  Hughes  and  Northrup,  as  to  conversations  had  by  them, 
respectively,  with  the  testator  at  the  time  of  receiving  instructions  in 
reference  to  a  draft  of  the  will  offered  for  probate,  and  another  drawn 
about  two  years  previously  by  the  same  attorneys.  The  testimony  given 
by  these  witnesses  was  undoubtedly  very  material  and  important  in  its 
bearing  upon  the  issue  tried,  and  if  erroneously  admitted  would  lead  to 
a  reversal  of  the  judgment  appealed  from.  The  evidence  showed  that 
the  witnesses  were  a  firm  of  lawyers,  residing  at  Sandy  Hill,  and  were 
employed  by  the  testator  in  their  professional  capacity  to  draw  such 
wills,  and  that  the  conversations  testified  to,  were  had  with  them  for 
the  purpose  of  enabling  them  to  execute  the  instructions  of  the  testator. 
That  these  interviews  were  had  in  pursuance  of  and  under  the  sanc- 
tion of  a  professional  employment,  and  that  communications  made  by  a 
client  under  such  circumstances  to  his  attorneys,  were  clearly  within 
the  protection  of  the  statute,  we  have  no  doubt.  The  prohibition  of  the 
statute,  therefore,  applies  to  these  communications,  and  they  were  in- 
admissible as  evidence  unless  brought  within  the  provisions  of  section 
836,   authorizing  their   disclosure.     By  that   section   the  pledge  of   se- 

8 — Compare   the  authorities  cited  in   W.,  §§  2317-2319. 


No.  507.  ATTORNEY  AND  CLIENT.  527 

crecy  imposed  by  the  statute  is  to  be  observed,  unless  its  provisions  'are 
expressly  waived'  by  the  client.  There  is  nothing  in  this  section  re- 
quiring the  waiver  to  be  made  in  writing,  or  in  any  particular  form  or 
manner,  or  at  any  particular  time  or  place ;  but  it  is  required  to  be  an 
express  waiver,  and  made  in  such  manner  as  to  show  that  the  testator 
intended  to  exempt  the  witnesses,  in  the  particular  instance,  from  the 
prohibition  imposed  by  the  statute.  An  examination  of  the  will  itself, 
as  well  as  the  evidence  of  all  of  the  witnesses  present  on  the  occasion 
of  the  execution,  concur  in  establishing  the  fact  that  the  testator  re- 
quested both  Hughes  and  Northrup  to  sign  the  attestation  clause  of  his 
first  as  well  as  of  his  second  will,  as  witnesses  thereto.  That  request 
implies  not  only  information  as  to  the  necessity  of  such  signatures  to 
the  validity  of  the  instrument  executed,  but  also  knowledge  of  the  obli- 
gations which  they  assumed  in  respect  to  the  proof  thereof  after  his 
death.  He  must  have  been  aware  that  his  object  in  making  a  will 
might  prove  to  be  ineffectual  unless  these  witnesses  could  be  called  to 
testify  to  the  circumstances  attending  its  execution,  including  the  con- 
dition of  his  mental  faculties  at  that  time.  ...  It  cannot  be  doubted 
that,  if  a  client  in  his  lifetime  should  call  his  attorney  as  a  witness  in 
a  legal  proceeding,  to  testify  to  transactions  taking  place  between  himself 
and  his  attorney,  while  occupying  the  relations  of  attorney"  and  client, 
such  an  act  would  be  held  to  constitute  an  express  waiver  of  the  seal 
of  secrecy  imposed  by  the  statute,  and  can  it  be  any  less  so  when  the 
client  has  left  written  and  oral  evidence  of  his  desire  that  his  attorney 
should  testify  to  facts,  learned  through  their  professional  relations, 
upon  a  judicial  proceeding  to  take  place  after  his  death?  We  think 
not."*  

LAYMAN'S  WILL  (1889). 
40  Minn.  57/,  42  N.  IV.  286. 

From  a  judgment  of  the  probate  court  of  Hennepin  county,  admit- 
ting an  instrument  to  probate  as  the  last  will  of  Martin  Layman,  de- 
ceased,  the   contestant,    Lizzie   Haley,   a   grand-daughter   of  the 
""'       testator,  appealed. 

Collins,  J. :  "But  two  questions  are  presented  for  our  considera- 
tion upon  this  appeal :  First.  Did  the  trial  court  err  in  admitting  cer- 
tain testimony  of  the  witness  Laing,  objected  to  by  the  contestant  on 
the  ground  that  it  was  incompetent  and  inadmissible,  by  reason  of 
Gen.  St.  1878,  c.  73,  §  10?  .  .  .  The  principal  question  in  this  case  seems 
to  have  been  as  to  the  sanity  of  the  deceased  wTien  he  executed  the  in- 
strument offered  for  probate,  and  alleged  by  the  proponents  to  be  his 
last  will  and  testament.  The  witness  Laing  was  an  attorney  at  law, 
and  had  prepared  the  will  in  question.  He  had  also  served  the  decedent 
in  other  matters  as  his  legal  adviser.  In  this  way  he  had  acquired 
some  knowledge  of  the  mental  condition  of  the  deceased,  and  was  more 
or  less  qualified  to  express  an  opinion  as  to  his  sanity.  .  .  .  The  witness 

0 — Compare  the  authorities  cited  in  W.,  §§2314-2315. 


528 


PRIVILEGED  COMMUNICATIONS. 


No.  507. 


stated  his  professional  connection  with  the  testator  for  quite  a  period  of 
time  before  his  death,  including  the  day  upon  which  the  will  was  drafted 
and  signed,  and  also  testified  that  he  had  many  conversations  with  him, 
always  upon  legal  business.  He  was  then  permitted,  the  contestant  ob- 
jecting, to  narrate  the  details  of  the  business  which  was  transacted, 
what  the  deceased  counselled  the  witness  about,  what  he  said,  and  what 
advice  and  counsel  he  was  given  by  the  attorney.  The  full  particulars 
of  one  or  two  interviews,  in  no  manner  connected  with  the  making  of 
the  will,  were  related  to  the  jury. 

"These  communications  between  the  decedent  and  his  attorney  were 
privileged  at  common  law  as  well  as  by  statute,  the  object  of  the  rule 
being  the  protection  of  the  client  and  his  estate.  And  while  many  text- 
writers  assert  emphatically  that  the  seal  of  secrecy  remains  forever, 
unless  removed  by  the  party  himself,  there  is  an  abundance  of  authority 
for  saying  that,  upon  the  decease  of  the  only  person  who  could,  in  his 
life-time,  exercise  the  privilege  of  waiver,  the  rule  should  not  be  so 
perverted  by  a  strict  adherence  to  it  as  to  render  it  inconsistent  with  its 
objects,  and  thus  bring  it  into  direct  conflict  with  the  reason  upon  which 
it  is  founded.  The  object  of  the  rule,  so  far  as  it  relates  to  this  class 
of  communication,  being  the  protection  of  the  estate,  there  remains  no 
reason  for  continuing  it  when  the  very  foundation  upon  which  it  pro- 
ceeds is  wanting.  The  testimony  called  for  was  quite  necessary  in  or- 
der to  determine  the  weight  which  ought  to  be  given  the  witness'  opin- 
ion as  to  the  mental  condition  of  the  testator,  and  his  disclosures  in  no 
way  reflected  upon  the  character  or  reputation  of  the  deceased.  The 
testimony  when  given  served  to  protect  the  estate,  and  tended  to  aid  in 
a  proper  disposition  of  it.  The  issue  in  the  case  was  as  to  the  mental 
soundness  of  a  person  under  whom  each  litigant  claimed,  and,  whatever 
the  result,  the  interest  and  the  estate  of  the  deceased  were  not  prejudi- 
cially affected.  It  is  not  an  action  in  which  the  success  of  an  adverse 
third  party  must  prove  detrimental  to  the  property.  Neither  of  these 
litigants  can  be  permitted  to  invoke  the  rule  respecting  privileged  com- 
munications for  the  purpose  of  excluding  material  and  important  evi- 
dence of  the  character  above  described  upon  the  only  question  involved 
in  the  dispute,  namely,  the  sanity  of  the  deceased."^" 


10 — Turner,  V.  C,  in  Russell  v.  Jack- 
son, 9  Hare  387,  393  (1851):  "In  the 
cases  of  testamentary  dispositions,  the 
very  foundation  on  which  the  rule  pro- 
ceeds seems  to  be  wanting;  and  in  the 
absence,  therefore,  of  any  illegal  purpose 
entertained  by  the  testator,  there  does  not 
appear  to  be  any  ground  for  applying  it. 
That  the  privilege  does  not  in 
all  cases  terminate  with  the  death  of  the 
party,  I  entertain  no  doubt.  That  it  be- 
longs equally  to  parties  claiming  under 
the  client  as  against  parties  claiming  ad- 
versely to  him,  I  entertain  as  little  doubt; 
but  it   does   not,   I   think,   therefore   follow 


that  it  belongs  to  the  executor  as  against 
the  next  of  kin,  and  in  such  a  case  as 
the  present.  In  the  one  case  the  question 
is  whether  the  property  belongs  to  the 
client  or  his  estate,  and  the  rule  may  well 
apply  for  the  protection  of  the  client's 
interests.  In  the  other  case  the  question 
is  to  which  of  two  parties  claiming  under 
the  client  the  property  in  equity  belongs, 
and  it  would  seem  to  be  a  mere  arbitrary 
rule  to  hold  that  it  belongs  to  one  of  them, 
rather   than    to   the   other." 

Compare    the    authorities    cited    in    W., 
§  2329. 


No.  509.  HUSBAND  AND  WIFE.  529 


J.    Husband  and  Wife.^^ 

MERCER  V.  STATE    (1898). 
40  Fla.  216,  24  So.  144. 

Taylor,  C.  :  "The  plaintiffs  in  error  were  on  the  loth  day  of  June, 
1897,  indicted,  jointly  with  one  Westley  Bush,  in  the  circuit  court  of 
Jackson  county,  for  willfully  driving  an  ox  upon  a  railroad  track, 
"""  .  .  .  Upon  the  cross-examination  of  J.  E.  Brock,  one  of  the 
State's  witnesses,  a  letter  written  by  him  to  his  wife  was  exhibited  to 
him  by  the  attorneys  for  the  defendants ;  and  he  was  asked  if  he  had 
written  such  letter,  to  which  he  replied,  in  substance,  that  he  had  writ- 
ten the  letter,  but  that  the  following  words,  'that  I  never  saw  the  boys 
that  night  that  the  ox  was  put  upon  the  road,'  then  contained  in  it,  were 
not  put  into  the  letter  by  him,  and  were  not  in  it  when  he  sent  it  to  his 
wife.  .  .  .  With  this  identification  of  the  letter,  and  by  consent  of  the 
State  attorney  as  to  the  time  and  order  of  its  introduction,  it  was  of- 
fered in  evidence  on  behalf  of  the  defendants  in  rebuttal  of  the  evidence 
of  the  witness  who  wrote  the  letter ;  but  its  admission  in  evidence  was 
objected  to,  both  by  the  State  and  by  the  witness  whose  letter  it  pur- 
ported to  be,  upon  the  ground  that,  being  a  letter  from  the  witness  to 
his  wife,  it  was  a  confidential  communication,  as  between  husband  and 
wife,  and  therefore  privileged.  This  objection  was  sustained.  ...  In 
neither  of  these  cases  decided  here,  nor  in  any  other  State  having  simi- 
lar enabling  statutes,  have  we  been  able  to  find  any  declaration  that  the 
removal  from  husband  and  wife  of  their  incompetency  as  .witnesses  be- 
cause of  interest  in  the  cause  has  the  effect  of  empowering  either  of 
them,  when  they  become  witnesses,  to  give  illegal  or  incompetent  testi- 
mony, by  detailing  or  exposing  those  transactions  or  communications 
that  have  passed  between  them  in  the  sacred  confidence  and  trust  that 
should  exist  between  husband  and  wife,  or  that  the  removal  of  the  in- 
competency of  husband  and  wife  as  witnesses  on  the  ground  of  interest 
removes  the  inhibition  of  the  law  against  the  exposure  in  evidence  of 
confidential  communications  between  them.  Such  confidential  com- 
munications between  husband  and  wife  have  always  been  regarded  as 
privileged.  .  .  .  Society  has  a  deeply-rooted  interest  in  the  preservation 
of  the  peace  of  families,  and  in  the  maintenance  of  the  sacred  institution 
of  marriage;  and  its  strongest  safeguard  is  to  preserve  with  jealous  care 
any  violation  of  those  hallowed  confidences  inherent  in,  and  inseparable 
from,  the  marital  status.  Therefore  the  law  places  the  ban  of  its  pro- 
hibition upon  any  breach  of  the  confidence  between  husband  and  wife, 
by  declaring  all  confidential  communications  between  them  to  be  in- 
competent matter  for  either  of  them  to  expose  as  witnesses.  The  reason 
of  the  old  rule  for  rendering  interested  witnesses  incompetent  to  testify 

Ti — For  the  history  of  this  privilege,  see  For    the   statutes   declaring   the   privilege, 

W-.   5  -ZSSS-  see  post,   in   the  .\ppendix. 


530 


PRIVILEGED  COMMUNICATIONS. 


No.  509. 


at  all  in  any  case  to  which  they  were  parties  was  because  their  interest 
was  supposed  to  be  such  a  strong  incentive  to  perjury,  and,  where  hus- 
band and  wife  was  interested  in  a  cause,  both  of  them  were  excluded 
as  incompetent  witnesses  for  any  purpose,  because  of  their  unity  of 
interest;  they,  in  the  eye  of  the  law,  being  regarded  as  one  person,  and 
whenever  either  was  interested  both  were  considered  to  be  equally  in- 
terested; and  the  incentive  to  perjury  from  such  interest  was  considered 
to  be  as  strongly  operative  upon  the  one  as  upon  the  other.  But  the 
reason  of  the  rule  for  excluding  the  confidences  between  husband  and 
wife  as  incompetent  matter  to  be  deposed  by  either  of  them,  though  they 
may  be  competent  witnesses  to  testify  to\  other  facts,  is  found  to  rest  in 
that  public  policy  that  seeks  to  preserve  inviolate  the  peace,  good  order, 
and  limitless  confidence  between  the  heads  of  the  family  circle  so  nec- 
essary to  every  well-ordered  civilized  society. 

"The  matter  that  the  law  prohibits  either  the  husband  or  wite  from 
testifying  to  as  witnesses  includes  any  information  obtained  by  either 
during  the  marriage,  and  by  reason  of  its  existence.  It  should  not  be 
confined  to  mere  statements  by  one  to  the  other,  but  embraces  all  knowl- 
edge upon  the  part  of  either  obtained  by  reason  of  the  marriage  relation, 
and  which,  but  for  the  confidence  growing  out  of  it,  would  not  have 
been  known.  And  the  same  rule  prevails  in  full  force  after  the  marital 
lelation  has  been  dissolved  by  death  or  divorce.  Where  the  incompe- 
tency as  witnesses  of  husband  and  wife  on  the  ground  of  interest  has 
been  removed  by  statute,  as,  is  the  case  here,  either  of  them  may  testify, 
for  or  against  the  other,  to  any  fact,  the  knowledge  of  which  was  ac- 
quired by  them  independently  of  their  marriage  relation,  in  any  man- 
ner not  involving  the  confidence  growing  out  of  the  marriage  relation. 
.  .  .  The  letter  from  the  husband  to  the  wife  here  excluded,  however, 
was  not  sought  to  be  introduced  directly  through  the  wife  as  a  witness 
to  whom  it  had  been  written,  but,  in  some  manner  not  disclosed  by  the 
record,  had  found  its  way  to  the  possession  of  the  attorneys  for  the 
defendants,  and  its  ofifer  in  evidence  was  from  their  immediate  custody. 
There  is  a  considerable  array  of  authorities  to  the  effect  that  when 
confidential  communications  between  husband  and  wife,  or  between  at- 
torney and  client,  get  out  of  the;  possession  and  control  of  the  parties  to 
the  confidence,  and  that  of  their  agents  and  attorneys,  and  find  their 
way  into  the  possession  and  control  of  third  persons,  regardless  of  the 
manner  in  which  the  possession  thereof  may  be  obtained  by  such  third 
persons,  then  such  communications  lose  the  protected  privilege  of  the 
law,  and  become  competent  and  admissible  evidence.  We  cannot  agree 
to  the  correctness  of  this  rule  thus  broadly  laid  down  by  these  and 
other  authorities,  but  think  the  policy  of  the  law,  that  forms  the  founda- 
tion of  the  general  rule,  is  far  more  strongly  upheld  and  subserved  by 
those  authorities  that  recognize  and  declare  certain  classes  of  com- 
munications to  be  privileged  from  the  inherent  character  of  the  com- 
munication itself,  and  that  in  such  cases  the  privilege  attaches  to  the 
communication  itself,  and  protects  it  from  exposure  in  evidence,  where- 


No.  510.  HUSBAND  AND  WIFE. 


531 


soever  or  in  whosesoever  hands  it  may  be.  .  .  .  We  think  the  letter  ot- 
fered  in  evidence  here  from  the  witness  Brock  to  his  wife  was  inher- 
ently a  confidential  communication,  and  that  it  was  privileged  from 
exposure  in  evidence,  in  and  of  itself,  regardless  of  the  custody  from 
which  it  was  produced  at  the  trial,  and  that  its  admission  in  evidence 
was  properly  refused. "^^ 


CLEMENTS  v.  MARSTON   (1872). 
52  N.  H.  31,  38. 

Assumpsit,  by  Charles  W.  Clements  against  Weare  Marston,  on  an 
ccount  annexed  for  boarding  the  defendant,  labor,  &c.,  between  April 
I  and  July  17,  1869.  The  defendant  died  since  the  commence- 
"■'■"  ment  of  the  suit,  and  his  administrator  did  not  elect  to  testify. 
Against  the  defendant's  objection,  the  wife  of  the  plaintiff  was  ad- 
mitted, and  sworn  as  a  witness  for  the  plaintiff,  generally  in  the  cause, 
and  her  testimony  related  to  matters  within  the  knowledge  of  the  de- 
ceased, and  concerning  which  he  might  have  testified.  The  wife  was 
permitted  to  testify  to  conversations  of  the  deceased  with  and  in  the 
presence  of  her  husband;  also,  that  she  kept  the  plaintiff's  money  at  the 
time  the  account  in  the  declaration  accrued,  and  as  to  the  amount  of 
that  money,  and  how  it  was  expended,  and  that  the  same  was  expended 
at  the  time  the  deceased  is  said  to  have  boarded  with  the  plaintiff,  as 
stated  below. 

Hatch  and  Page  for  the  defendant :  "The  admission  of  the  wife  as  a 
witness  was  an  error.  If  she  was  a  competent  witness,  she  must  have 
been  made  so  by  Gen.  Stats.,  ch.  209,  sees.  20-22.  .  .  .  The  testimony 
given  by  the  wife  in  this  case  belongs  to  that  class  which  is  expressly 
declared  incompetent  by  the  statute,  (i)  Gen.  State.,  ch.  209,  sec.  21, 
provide  that  sec.  20  'shall  not  be  so  construed  as  to  render  competent 
their  testimony  as  to  any  statement,  conversation,  letter,  or  other  com- 
munication made  by  either  of  them  to  the  other,  or  to  any  other  per- 
son;' and  sec.  22,  by  the  words  'in  any  case,'  cannot  enlarge  the  limi- 
tation before  made  in  sec.  21.  The  wife  was  here  permitted  to  testify 
to  'conversations  of  the  deceased  with  and  in  the  presence  of  her  hus- 
band,' which  fall  within  the  exact  letter  of  the  statute  proviso.  And. 
moreover,  such  conversations  and  communications  were  matters  of 
marital  confidence ;  that  is,  they  were  conversations  which  she  heard 
and  secrets  which  she  obtained  through  her  peculiar  relation  as  the  wife 
of  the  plaintiff,  and  were  not  admissible." 

Wiggin  and  Leavitt,  for  the  plaintiff:  "1.  The  wife  was  a  compe- 
tent witness.  She  was  neither  a  party  to  the  record  nor  a  party  in  in- 
terest. No  disqualification  can  be  suggested,  except  that  she  was  the 
plaintiff's  wife ;  and  the  legislature  has  seen  fit  to  enact — whether  wisely 
or  unwisely  is  not  for  us  to  discuss  or  the  court  to  determine — that  that 

12 — Compare  the  authorities  cited  in  W.,  §  2339. 


532  PRIVILEGED  COMMUNICATIONS.  No.  510. 

relationship  shall  neither  disqualify  nor  exempt  from  testifying.  .  .  . 
II.  The  subjects  upon  which  the  plaintiff's  wife  was  examined  were  not 
within  the  exception  named  in  the  statute.  We  claim  that  it  was  the 
intention  of  the  legislature  to  take  away  entirely  both  the  disqualifica- 
tion and  the  exemption  existing  at  common  law,  depending  upon  the 
existence  and  continuance  of  the  marriage  relation,  and  based  upon 
'identity  of  trust,'  and  the  'fear  of  sowing  dissension  between  husband 
and  wife,  and  occasioning  perjury,'  and  to  allow  and  require  each  to 
testify  to  facts  within  their  knozvledge  not  confided  to  them  by  the  other. 
Confidential  communications  between  husband  and  wife  are  protected 
from  disclosure  after  the  marriage  relation  has  ended  by  divorce  or 
death,  and  whatever  would  be  protected  from  disclosure  after  the  mar- 
riage relation  had  ceased,  is  equally  protected  from  disclosure  while  the 
relation  continues,  and  nothing  more.  ...  As  to  her  testimony  that  she 
kept  her  husband's  money  at  this  time,  and  how  it  was  expended,  she 
was  acting  as  her  husband's  agent,  and  could  properly  testify  to  her  acts 
as  such,  aside  from  the  statute." 

Sargent,  J. :  "At  common  law,  a  party  to  a  cause  could  not  testify, 
on  the  ground  that  he  was  interested.  Any  person  not  a  party,  if  in- 
terested in  the  result  of  the  suit,  was  excluded  as  a  witness  on  the 
ground  of  interest.  Wives  were  excluded, — ist,  on  the  ground  of  in- 
terest, they  being  interested  wherever  their  husbands  were;  and  2d, 
upon  the  ground  of  public  policy,  that  it  was  not  expedient  to  place 
husband  and  wife  in  a  position  that  might  lead  to  dissensions  and  strife 
between  them,  or  that  might  encourage  perjury.  Hence,  wives  were 
not  allowed  to  testify  for  or  against  their  husbands  when  they  were  par- 
ties to  civil  proceedings,  and,  for  the  same  reason,  both  were  excluded 
when  either  was  a  party  in  a  criminal  case.  .  ,  .  The  law  of  1857,  ch. 
1952,  provided  that  no  person  should  be  excused  or  excluded  as  a  wit- 
ness by  reason  of  interest  as  a  party  or  otherwise.  This  was  held  not 
to  include  the  wife  of  the  party.  .  .  .  The  disqualification  of  interest 
was  alone  removed  by  that  statute.  But  that  was  not  the  only  ground 
upon  which  the  wife  of  a  party  had  been  excluded  at  common  law.  The 
other  ground — that  based  on  public  policy — was  untouched,  and  re- 
mained in  its  full  force.  .  .  . 

"But  one  step  prepared  the  way  for  another,  and  each  legislature 
went  a  step  beyond  its  predecessor,  until,  in  1866,  in  chapter  4268  of  the 
acts  of  that  year,  which  is  embraced  in  General  Statutes,  chapter  209, 
section  20,  the  disqualification  of  interest  is  not  only  removed,  but  it 
is  provided  that  in  certain  classes  of  cases  the  husband  and  wife  are 
made  competent  witnesses  for  or  against  each  other.  An  additional 
section  was  added  in  1867, — section  22,  of  the  same  chapter, — providing 
that,  'the  wife  may  testify  for*  the  husband,  or  the  husband  for  the  wife, 
in  any  case  where  it  appears  to  the  Court  that  their  examination  as 
witnesses  upon  the  points  to  which  their  testimony  is  offered  would  not 
lead  to  such  violation  of  confidence'  (meaning  marital  confidence).  This 
section  was  amended  by  chapter  20,  laws  of  1870,  so  that  the  wife  nr^y 


No.  511.  HUSBAND  AXD  WIFE.  533 

testify  for  or  against  her  husband,  or  the  husband  for  or  against  his 
wife,  in  every  case  where  it  appears  to  the  court  that  their  examination 
as  witnesses  would  not  lead  to  such  violation  of  (marital)  confidence. 
.  .  .  Thus  it  appears  that  the  present  policy  of  our  legislation  on  this 
subject  is  to  make  the  husband  and  wife  competent  witnesses  for  or 
against  each  other,  just  as  though  they  were  strangers,  in  no  way  con- 
nected, except  in  the  single  case  where  the  Court  can  see  that  such 
testimony  would  lead  to  a  violation  of  marital  confidence. 

"Applying  that  principle,  and  there  would  seem  to  be  no  good  reason 
why  the  wife  should  not  have  testified  in  the  case  before  us.  They  are 
to  be  allowed  or  compelled  to  testify  for  and  against  each  other,  with 
this  single  exception ;  and  this  violation  of  marital  confidence  must  be 
something  confided  by  one  to  the  other  simply  and  specially  as  husband 
or  wife,  and  not  what  would  be  communicated  to  any  other  person  un- 
der the  same  circumstances.  In  this  case  the  wife  acted  as  the  hus- 
band's agent  and  kept  his  money  and  knew  how  it  was  expended ;  but 
all  the  communications  made  to  her  were  made  to  her  as  such  agent, 
just  as  he  would  have  made  the  same  communications  to  any  other 
agent  doing  the  same  business.  There  was  no  confidential  communica- 
tion between  them  as  husband  and  wife,  but  simply  the  ordinary  com- 
munications between  principal  and  agent ;  and  the  communications 
would  be  no  more  confidential  than  those  between  other  principal  and 
agent.  .  .  .  Allowing  the  wife  to  testify  for  or  against  her  husband,  in 
any  case  where  a  stranger  would  have  been  a  competent  witness,  seems 
to  be  the  rule  now ;  and,  in  that  view  of  the  case,  nothing  should  be  ex- 
cluded except  something  that  is  strictly  confidential,  and  not  only  so  but 
communicated  in  strict  marital  confidence. ^^ 


4.     JurorsM 

PHILLIPS  V.  MARBLEHEAD   (1889). 

148  Mass.  326,  ig  N.  E.  547. 

Petition  to  the  Superior  Court  for  a  jury  to  assess  the  damages 
caused  by  the  taking  by  flie  respondent  of  land  of  the  petitioner,  in 
July,  1886,  for  the  laying  out  of  Atlantic  Avenue  in  Marblehead. 
"■^■*-  The  respondent  called  as  a  witness  one  Martin,  a  member  of 
the  board  of  selectmen  of  Marblehead  in  1886,  who  testified  as  an  ex- 
pert as  to  the  value  of  the  petitioners'  land.  Upon  cross-examination 
he  testified  that  the  petitioners  had  in  his  judgment  sustained  damage 
to  the  amount-  of  three  hundred  dollars,  and  no  more.  The  petitioners 
then  offered  in  evidence,  solely  for  the  purpose  of  contradicting  the 
witness  Martin,  the  record  of  the  board  of  selectmen  of  Marblehead 
made  July  27,   1886.  showing  the  laying  out  of  Atlantic  Avenue,  and 

13 — Compare  the  authorities  cited  in  W.,  14 — For   the    use    of   jurors'    affidavits   to 

§  2336.  imf<earli  a  verdict,  see  the  Parol  Evidence 

Rule,   post,    Nos.    s69-57S- 


534  PRIVILEGED  COMMUNICATIONS.  No.  511. 

the  amount  of  damage  therefor,  signed  by  Martin  together  with  the 
other  members  of  the  board.  The  record  contained  the  statement  that 
the  petitioner  had  sustained  damage  by  the  taking  of  their  land  to  the 
amount  of  five  hundred  and  fifty-three  dollars,  and  that  that  sum  was 
awarded  the  petitioners.  The  judge  ruled  that  the  record  was  not  ad- 
missible in  evidence  for  the  purpose  named^  and  the  petitioners  ex- 
cepted. 

Field,  J.:  "While  the  deliberations  of  legislative  bodies  are  usually 
public,  the  deliberations  of  judicial  or  quasi  judicial  bodies  are  private, 
and  there  are  reasons  of  public  policy  why  they  should  not  be  made 
public,  particularly  when  the  purpose  to  be  served  is  comparatively  un- 
important. Grand  and  petit  jurors  are  not  permitted  to  testify  to  opin- 
ions concerning  the  case  expressed  in  their  consultations  with  one  an- 
other, and  arbitrators  are  not  permitted  to  testify  to  the  grounds  on 
which  they  reached  the  conclusions  declared  in  the  award.  For  the 
purpose  of  contradicting  a  witness,  we  think  that  evidence  ought  not  to 
be  received  of  the  deliberations  of  selectmen  acting  in  a  quasi  judicial 
capacity,  and  that  the  certificate  of  the  doings  of  the  board  of  select- 
men was  rightly  excluded." 


EARL  OF  SHAFTESBURY'S  TRIAL   (1681). 
8  Hozv.  St.  Tr.  759,  771. 

Sir  F.  Withins  moved,  after  the  charge  to  the  grand  jury,  that  the 

evidence  be  heard  in  court ;  and  L.  C.  J.  Pemberton  declared  that  he 

would  grant  the  motion.     The  jury  then  desired  to  have  a  copy 

of  their  oath,^^  which  was  given  them,  and  they  withdrew.     On 

returning  shortly,  the  following  colloquy  ensued : 

FGreman:  "My  lord  Chief  Justice,  it  is  the  opinion  of  the  jury  that 
they  ought  to  examine  the  witnesses  in  private,  and  it  hath  been  the 
constant  practice  of  our  ancestors  and  predecessors  to  do  it;  and  they 
insist  upon  it  as  their  right  to  examine  in  private,  because  they  are 
bound  to  keep  the  king's  secrets,  which  they  cannot  do  if  it  be  done  in 
court", 

L.  C.  J.  Pemberton  :  "Look  ye,  gentlemen  of  the  jury,  it  may  very 
probably  be,  that  some  late  usage  has  brought  you  into  error,  that  it  is 
your  right,  but  it  is  not  your  right  in  truth.  .  .  .  What  you  say  con- 

15 — The    form    of    oath    administered    to  keep  secret;     You  shall  present  no  one  for 

grand  jitrors   was  as   follows:  envy,  hatred,   or   malice;   but  you  shall  pre- 

"The   foreman,   by  himself,   lays  his  hand  sent   all   things  truly  as  they  come   to   your 

on    the   book,    and    the    marshal    administers  knowledge,    according    to    the   best    of   your 

to    him   the    following   oath:      'My    lord,    or  understanding:      So    help    you    God.'      The 

sir    (as   the   foreman's   name   may  be),    you,  rest  of  the  grand  jury,  by  three  at  a  time, 

as    the    foreman    of   this    grand    inquest    for  in   order,   are   sworn   in   the   following  man- 

the    body    of    the   county    of    A,    shall    dili-  ner:     'The   same   oath   which    your    foreman 

g'ntly   inquire   and   true   presentment   make  hath   taken    on    his   part,    you    and   every   of 

of  all  such   matters  and  things  as  shall  be  you,  shall  well  and  truly  observe  and  keep 

given    you    in   charge;    the    king's    counsel,  on    your   part:      So   help   you    God.'  " 
your    fellows',    and    your    own,    you    shall 


Ko.  513.  JURORS.  535 

cerning  keeping  your  counsels,  that  is  quite  of  another  nature,  that  is, 
your  debates,  and  those  things,  there  you  shall  be  in  private,  for  to 
consider  of  what  you  hear  publicly.  But  certainly  it  is  the  best  way, 
both  for  the  king,  and  for  you,  that  there  should,  in  a  case  of  this  na- 
ture, be  an  open  and  plain  examination  of  the  witnesses,  that  all  the 
world  may  see  what  they  say". 

Foreman:  "My  lord,  if  your  lordship  pleases,  I  must  beg  your  lord- 
ship's pardon,  if  I  mistake  in  anything,  it  is  contrary  to  the  sense  of 
what  the  jury  apprehend  First,  they  apprehend  that  the  very  words 
of  the  oath  do'binu  them,  it  says,  'That  they  shall  keep  the  counsel's, 
and  their  own  secrets :'  Now,  my  lord,  there  can  be  no  secret  in  public ; 
the  very  intimation  of  that  imply,  that  the  examination  should  be  secret ; 
besides,  my  lord,  I  beg  your  lordship's  pardon  if  we  mistake,  we  do  not 
understand  anything  of  law". 

Mr.  Papillon  [a  juror]  :  "If  it  be  the  ancient  custom  of  the  kingdom 
to  examine  in  private,  then  there  is  something  maybe  very  prejudicial 
to  the  king  in  this  public  examination ;  for  sometimes  in  examining  wit- 
nesses in  private,  there  come  to  be  discovered  some  persons  guilty  of 
treason,  and  misprision  of  treason,  that  were  not  known,  nor  thought 
on  before.  Then  the  jury  sends  down  to  the  court,  and  gives  them 
intimation,  and  these  men  are  presently  secured ;  whereas,  my  lord,  in 
case  they  be  examined  in  open  court  publicly,  then  presently  there  is  no 
intimation  given  and  these  men  are  gone  away.  Another  thing  that  may 
be  prejudicial  to  the  king,  is.  that  all  the  evidences  here,  will  be  fore- 
known before  they  come  to  the  main  trial  upon  issue  by  the  petty  jury; 
then  if  there  be  not  a  very  great  deal  of  care,  these  witnesses  may  be 
confronted  by  raising  up  witnesses  to  prejudice  them,  as  in  some  cases 
it  has  been.  Then  besides,  the  jury  do  apprehend,  that  in  private  they 
are  more  free  to  examine  things  in  particular,  for  the  satisfying  their 
own  consciences,  and  that  without  favour  or  affection ;  and  we  hope  we 
shall  do  our  duty." 

L.  C.  J.  Pemberton  :  "The  king's  counsel  have  examined  whether  he 
hath  cause  to  accuse  these  persons,  or  not ;  and,  gentlemen,  they  under- 
stand very  well,  that  it  will  be  no  prejudice  to  the  king  to  have  the 
evidence  heard  openly  in  court ;  or  else  the  king  would  never  desire  it." 

Foreman:  "My  lord,  the  gentlemen  of  the  jury  desire  that  it  may  be 
recorded,  that  we  insisted  upon  it  as  our  right,  but  if  the  Court  over- 
rule, we  must  submit  to  it." 


COMMONWEALTH  v.  MEAD    (1858). 
12   Gray    167. 

Indictment    for   the   manslaughter   of   Jeremiah    A.    Agin.      At    the 

trial  in  the  municipal  court  of  Boston,  before  Nash,  J.,  the  defendant 

admitted  the  killing,  but  contended  that  it  was  in  self  defence. 

John  Perham,  Jr.,  testified  that  he  saw  the  defendant  shoot  Agin, 

and  that  Agin  was,  at  the  time,  between  one  and  three  feet  from  the 


536  PRIVILEGED  COMMUNICATIONS.  No.  513. 

defendant.  To  contradict  Perham,  the  defendant  called  several  of 
the  grand  jurors  who  found  this  indictment,  and  proposed  to  show  hy 
them  that  Perham  testified  differently  before  the  grand  jury  as  to  the 
distance  between  the  defendant  and  Agin  when  the  pistol  was  fired. 
But  the  judge  excluded  this  evidence,  on  the  ground  that  it  was 
against  public  policy  and  the  established  practice,  to  allow  grand  jurors 
to  be  called  to  detail  the  testimony  of  witnesses,  given  on  a  partial 
and  ex  parte  examination,  and  in  the  grand  jury  room,  for  the  purpose 
of  impeaching  the  witnesses  at  the  trial  of  the  indictment.  The  defend- 
ant was  found  guilty,  and  alleged  exceptions. 

BiGELOW,  J. :  "...  The  only  other  question  arising  in  this  case  is, 
whether  the  testimony  of  the  grand  jurors  is  admissible  to  prove  that 
one  of  the  witnesses  in  behalf  of  the  prosecution  testified  differently 
on  his  examination  before  them  from  the  testimony  given  by  him  before 
the  jury  trials.  As  to  the  competency  of  such  evidence  the  authorities 
are  not  uniform.  The  weight  of  them  is  in  favor  of  its  admissibility. 
On  principle  it  seems  to  us  to  be  competent.  The  reasons  on  which 
the  sanction  of  secrecy  which  the  common  law  gives  to  proceedings 
before  grand  juries  is  founded  are  said  in  the  books  to  be  threefold. 
One  is  that  the  utmost  freedom  of  disclosure  of  alleged  crimes  and 
offences  by  prosecutors  may  be  secured.  A  second  is  that  perjury  and 
subornation  of  perjury  may  be  prevented  by  withholding  the  knowledge 
of  facts  testified  to  before  the  grand  jury,  which,  if  known,  it  would 
be  for  the  interest  of  the  accused  or  their  confederates  to  attempt  to 
disprove  by  procuring  false  testimony.  The  third  is  to  conceal  the 
fact  that  an  indictment  is  found  against  a  party,  in  order  to  avoid 
the  danger  that  he  may  escape  and  elude  arrest  upon  it,  before  the 
presentment  is  made.  .  .  .  But  when  these  purposes  are  accomplished, 
the  necessity  and  expediency  of  retaining  the  seal  of  secrecy  are  at 
an  end.  Cessante  ratione,  ccssat  regiila.  After  the  indictment  is 
found  and  presented,  and  the  accused  is  held  to  answer  and  the  trial 
before  the  traverse  jury  is  begun,  all  the  facts  relative  to  the  crime 
charged  and  its  prosecution  are  necessarily  opened,  and  no  harm  can 
arise  to  the  cause  of  public  justice  by  no  longer  withholding  facts 
material  and  relevant  to  the  issue,  merely  because  their  disclosure  may 
lead  to  the  development  of  some  part  of  the  proceedings  before  the 
grand  jury.  On  the  contrary,  great  hardship  and  injustice  might  often 
be  occasioned  by  depriving  a  party  of  important  evidence,  essential  to 
his  defence,  by  enforcing  a  rule  of  exclusion,  having  its  origin  and 
foundation  in  public  policy,  after  the  reasons  on  which  this  rule  is 
based  have  ceased  to  exist.  The  case  at  bar  furnishes  a  good  illustra- 
tion of  the  truth  of  this  remark.  No  possible  injury  to  the  interests 
or  rights  of  the  government  that  we  can  see  could  happen  by  a  dis- 
closure of  the  testimony  given  by  the  witness  before  the  grand  jury. 
.  .  .  On  the  other  hand,  it  is  clear  that  the  rights  of  the  accused  might 
be  greatly  affected  and  his  peril  much  increased,  if  he  can  be  shut  out 
from  showing  the  fact  that  an  important  witness  against  him  is  un- 


No.  515.  JURORS.  537 

worthy  of  credit,  or  that  his  testimony  before  the  jury  of  trials  is 
to  be  taken  with  great  caution  and  doubt,  because  on  a  previous  occa- 
sion, when  called  to  testify  on  oath,  he  had  given  a  different  account  of 
the  same  transaction  from  that  which  he  has  stated  in  his  evidence 
at  the  trial."^ 


Statutes.  California,  P.  C.  1872,  §926:  "Every  member  of  the 
grand  jury  must  keep  secret  whatever  he  himself  or  any  other  grand 
juror  may  have  said  or  in  what  manner  he  or  any  other  grand 
"  *  juror  may  have  voted  on  a  matter  before  them;  but,  may,  how- 
ever, be  required  by  any  court  to  disclose  the  testimony  of  a  witness 
examined  before  the  grand  jury,  for  the  purpose  of  ascertaining 
whether  it  is  consistent  with  that  given  by  the  witness  before  the  court 
or  to  disclose  the  testimony  given  before  them  by  any  person  upon  a 
charge  against  such  person  for  perjury  in  giving  his  testimony  or 
upon  trial  therefor." 

Iowa,  Code  1897,  §5267:  "Every  member  of  the  grand  jury  must 
keep  secret  the  proceedings  of  that  body  and  the  testimony  given  before 
it,  except  as  provided  in  the  next  section,  nor  shall  any  grand  juror  or 
officer  of  the  court  disclose  the  fact  that  an  indictment  for  a  felony 
has  been  found  against  a  person  not  in  custody  or  under  bail,  other- 
wise than  by  presenting  the  same  in  court  or  issuing  or  executing 
process  thereon,  until  such  person  has  been  arrested."  lb.  §  5268  (dis- 
closure of  a  witness'  testimony  may  be  made  to  ascertain  its  consistency 
or  to  prove  perjury).  lb.  §5269:  "No  grand  juror  shall  be  questioned 
for  anything  he  may  say  or  any  vote  he  may  give  in  the  grand-jury 
room  relative  to  a  matter  legally  pending  before  it,"  except  for 
perjury,^ 


5.     Government  and  Informer;  Official  Documents;  State  Secrets. 

HARDY'S   TRIAL    (1794). 
24  Hoxv.  St.  Tr.  8. 

The  witness  had  reported  the  existence  and  doings  of  secret  political 
societies :     "I   did   not  do   it   of   myself,   but   by   advice ;    a   gentleman 
recommended  me  by  all  means  to  make  a  report.     It  was  not  to 
^  a  magistrate."     Mr.   Erskine:     "Then  to  whom  was   it?"     Ob- 

jection was  made.     "I  submit  he  must  state  the  name  of  the  person  to 
whom  he  communicated  it ;  then  have  I  not  a  right  to  subpoena  that 

I — Compare   the   authorities  cited   in  W.,  2 — Compare   the  authorities  cited   in   W., 

§  2363.  §  -.'''O- 


538  PRIVILEGED  COMMUNICATIONS.  No.  510. 

person?  I  will  then  ask  [this  witness].  When  did  you  tell  it  him? 
At  what  place?  Who  were  present?  Then  I  ask  that  person,  Is  is 
true?  .  .  .  And  if  he  were  to  say,  I  never  saw  his  face  [the  witness'] 
till  I  saw  him  in  court,  would  not  that  shake  the  credit  of  the  witness 
with  any  man  of  understanding?  I  apprehend  it  would."  Mr.  Attor- 
ney-General (opposing)  :  "What  is  the  principle  upon  which  the  Court 
says,  You  shall  never  ask  where  he  got  that  information?  ...  A  court 
of  justice  does  not  sit  to  catch  the  little  whispers  or  the  huzzas  of 
popularity;  it  proceeds  upon  great  principles  of  general  justice.  It 
says  that  individuals  must  suffer  inconveniences  rather  than  great  pub- 
lic mischief  should  be  incurred;  and  it  say  that  if  men's  names  are  to 
be  mentioned  who  interpose  in  situations  of  this  kind,  the  conse- 
quence must  be  that  great  crimes  will  be  passed  over  without  any 
information  being  offered  about  them,  or  without  persons  taking  that 
part  which  is  always  a  disagreeable  part  to  take  but  which  at  the 
same  time  it  is  necessary  should  be  taken  for  the  interest  of  the  public. 
.  .  .  Nobody  will  deny  but  that  it  is  a  hard  case;  but  it  has  become 
a  settled  rule,  because  private  mischief  gives  way  to  public  conveni- 
ence." 

Eyre,  L.  C.  J. :  "It  is  perfectly  right  that  all  opportunities  should 
be  given  to  discuss  the  truth  of  the  evidence  given  against  a  prisoner ;  but 
there  is  a  rule  which  has  universally  obtained  on  account  of  its  im- 
portance to  the  public  for  the  detection  of  crimes,  that  those  persons 
who  are  the  channel  by  means  of  which  that  detection  is  made  should 
not  unnecessarily  disclosed.  .  .  .  [As  to  (i)  the  person  reported  to,] 
I  cannot  satisfy  myself  that  there  is  any  substantial  distinction  between 
the  case  of  this  man's  going  to  a  justice  of  the  peace  or  going  to  a 
magistrate  superior  to  a  justice  of  the  peace,  or  to  some  other  person 
who  communicated  with  a  justice  of  the  peace.  .  .  .  [As  to  (2)  the 
person  above,  advising  a  report,]  I  am  of  opinion  the  principle  extends 
to  that  question,  because  the  disclosing  who  the  friend  was  that  advised 
him  to  go  to  a  magistrate  is  a  thing  which  puts  that  friend  in  a  situation 
into  which  he  ought  not  to  be  put,  and  into  which  it  is  inconvenient  to 
general  justice  that  he  should  be  put.  .  .  .  My  apprehension  is  that, 
among  those  questions  which  are  not  permitted  to  be  asked,  are  all 
those  questions  which  tend  to  the  discovery  of  the  channels  by  whom  the 
disclosure  was  made  to  the  officers  of  justice;  that  it  is  upon  the  gen- 
eral principle  of  the  convenience  of  public  justice  not  to  be  disclosed; 
that  all  persons  in  that  situation  are  protected  from  the  discovery;  and 
that,  if  it  is  objected  to,  it  is  no  more  competent  for  the  defendant  to 
ask  who  the  person  was  that  advised  him  to  make  a  disclosure  than  it 
is  to  whom  he  made  the  disclosure  in  consequence  of  that  advice,  [or] 
than  it  is  to  ask  any  other  question  respecting  the  channel  of  com- 
munication or  all  that  was  done  under  it." 

BuLLER,  J. :  "My  lord  chief  justice  and  my  lord  chief  baron  both 
say  the  principle  is  that  the  discovery  is  necessary  for  the  purpose  of 
obtaining  public  justice;  and  if  you  call  for  the  name  of  informer  in 


Mo.  516.  STATE    SECRETS.  539 

such  cases,  no  man  will  make  a  discovery,  and  public  justice  will  be 
defeated.  Upon  that  ground,  therefore,  it  is  that  the  informer  for  the 
purpose  of  a  public  prosecution  shall  not  be  disclosed."^ 


DELANEY  v.  PHILADELPHIA    (1794). 
/  Yeatcs  40^. 

Issue  was  joined  in  this  cause  to  ascertain  the  distance  of  the 
northern  boundary  of  Dock  street,  from  the  south  side  of  Walnut  street, 
on  the  east  side  of  Second  street.  For  the  appellant  it  was 
*'-*^"  moved  that  a  subpoena  with  a  clause  of  duces  tecum,  should  issue 
to  the  surveyor  general,  to  bring  with  him  certain  original  papers  from 
his  office.  Smith,  J.,  suggested  his  doubts,  whether  the  Court  could 
with  propriety  issue  a  subpoena  with  such  a  clause  to  the  surveyor  gen- 
eral, or  any  other  public  officer,  having  the  custody  of  papers,  of 
which  certified  copies  were  evidence. 

Per  Curiam  :  "We  ought  not  to  issue  a  subpcena  with  such  a 
clause,  in  the  present  instance ;  otherwise  the  surveyor  general  or  other 
public  officer,  might  be  obliged  to  take  any  original  public  papers  from 
his  office  to  the  furthest  counties  in  the  state,  and  the  same  papers 
might  be  demanded  in  different  counties  at  the  same  time." 

Whereupon  the  counsel  mutually  agreed  to  go  together,  to  the 
office  of  the  surveyor  general,  and  examine  the  original  papers.  Mr. 
Broadhead,  the  surveyor  general,  would  not  permit  his  clerk  to  make 
out  copies  for  the  counsel,  alleging  that  it  was  after  office  hours  on  Sat- 
urday afternoon,  although  his  clerk  offered  to  do  the  service,  on  the 
parties  agreeing  to  make  him  compensation.  The  Court  directed  a  sub- 
poena to  issue  to  the  surveyor  general,  to  appear  instanter;  he  appeared 
accordingly,  and  attempted  to  excuse  himself,  by  observing  that  he 
could  not  see  sufficiently  to  make  out  the  copies,  and  had  no  clerk  who 
could  perform  the  service ;  but  on  being  threatened  with  an  attachment 
by  the  Court,  he  produced  the  original  papers.* 


3 — Gray,  C.  J.,  in  Worthington  v.  Scrib-  discretion   of  the   Government,   to   be   exer- 

ner,    109    Mass.    487,    488    (1872):      "It    is  cised    according   to    its   views    of    what    the 

the   duty   of   every  citizen    to   communicate  interests  of  the   public   require.      Courts   of 

to   his    government    any   information    which  justice   therefore    will    not   compel    or   allow 

he    has    of    the   commission    of   an    offence  the    discovery    of    such    information,    either 

against    the    laws.      To    encourage    him    in  by    the    subordinate    officer    to    whom    it   is 

performing  this   duty  without   fear   of  con-  given,  by  the  informer  himself,   or  by  any 

sequences,   the  law   holds  such   information  other    person,     without    the    permission    of 

to    be    among   secrets    of    .State,    and    leaves  the  Government." 

the   question   how    far    and   under   what  cir-  Compare      the     authorities    cited    in    W., 

cumsfances    the    names    of    the    informers  §  2374. 

and    the    channel    of    communication    shall  4 — Compare  the  authorities  cited   in   W., 

be   suffered    to   be    known    to    the   absolute  §  2373. 


540  PRIVILEGED  COMMUNICATIONS.  No.  517. 

AARON  BURR'S  TRIAL    (1807). 
Robertson's  Rep.,  I,  121,  12J,    1^6,  181,  255;  II,  5^6. 

Treason.  The  accused  moved  for  a  subpoena  duces  tecum  to  the 
President  of  the  United  States  to  attend  and  bring  certain  correspond- 
ence with  General  Wilkinson,  material  to  aid  the  defence.  The 
^*-*  counsel  for  the  prosecution  did  not  deny  that  the  President  was 
"as  amenable  to  that  process  as  any  other  citizen,"  but  claimed  that 
"if  his  public  functions  disable  him  from  obeying  the  process,  that  would 
be  a  satisfactory  excuse  pro  hac  vice,"  and  that  the  papers  here  asked 
for  were  state  secrets  and  irrelevant.  Mr.  Botts,  arguing  for  the  ac- 
cused: "I  can  never  express,  in  terms  sufficiently  strong,  the  detesta- 
tion and  abhorrence  which  every  American  should  feel  towards  a  sys- 
tem of  State  secrecy.  It  never  can  conduce  to  public  utility,  though  it 
may  furnish  pretexts  to  men  in  power  to  shelter  themselves  and  their 
friends  and  agents  from  the  just  animadversion  of  the  law, — to  direct 
their  malignant  plots  to  the  destruction  of  other  men  while  they  are 
themselves  secure  from  punishment.  In  a  government  of  responsibility 
like  ours,  where  all  the  agents  of  the  public  must  be  responsible  for 
their  conduct,  there  can  be  but  few  secrets.  The  people  of  the  United 
States  have  a  right  to  know  every  public  act,  every  thing  that  is  done 
in  a  public  way  by  their  public  functionaries.  They  ought  to  know  the 
particulars  of  public  transactions  in  all  their  bearings  and  relations, 
so  as  to  be  able  to  distinguish  whether  and  how  far  they  are  conducted 
with  fidelity  and  ability ;  and  with  the  exception  of  what  relates  to 
negotiations  with  foreign  nations,  or  what  is  called  the  diplomatic  de- 
partment, there  ought  to  be  nothing  suppressed  or  concealed.  ...  I  will 
again  predict  that,  if  a  secret  is  inquisitorial  tribunal  be  established  by 
your  decision  now,  ...  if  you  determine  that  we  be  deprived  of  the 
benefit  of  important  written  or  oral  evidence  by  the  introduction  of  this 
State  secrecy,  you  lay,  without  intending  it,  the  foundation  for  a  sys- 
tem of  oppression.  If  these  things  be  established,  to  go  down  to  pos- 
terity as  precedents,  the  inevitable  consequences  will  be  that,  whenever 
any  man  in  the  United  States  becomes  an  object  of  the  vengeance 
or  jealousy  of  those  in  power,  he  may  easily  be  ruined.  A  wicked 
executive  power  will  have  nothing  to  do  to  effect  his  destruction  but 
to  foment  divisions  in  this  country,  to  encourage  and  excite  accusa- 
tions by  its  officers,  to  deny  the  use  of  all  public  documents  that  may 
tend  to  the  justification  of  the  accused,  or  to  render  the  attainment 
of  exculpatory  evidence  dependent  on  the  arbitrary  whim  of  its  prose- 
cuting officers,  and  he  will  be  condemned  to  sink  without  the  smallest 
effectual  resistance." 

Marshall,  C.  J.  (granting  the  motion)  :  "The  exceptions  [to  the 
accused's  right  to  process]  furnished  by  the  law  of  evidence,  with  one 
reservation,  so  far  as  they  are  personal,  are  of  those  [persons]  only 
whose  testimony  could  not  be  received.  The  single  reservation  alluded 
to  is  the  case  of  the  King.    Although  he  may,  perhaps,  give  testimony, 


No.  517.  STATE    SECRETS.  541 

it  is  said  to  be  incompatible  with  his  dignity  to  appear  under  the  process 
of  the  Court.  Of  the  many  points  of  difference  which  exist  between 
the  First  Magistrate  in  England  and  the  First  Magistrate  in  the  United 
States,  in  respect  to  the  personal  dignity  conferred  on  them  by  the  con- 
stitutions of  their  respective  nations,  the  Court  will  only  mention  two. 
(i)  It  is  a  principle  of  the  English  constitution  that  the  King  can  do 
no  wrong,  that  no  blame  can  be  imputed  to  him,  that  he  cannot  be 
named  in  debate.  By  the  constitution  of  the  United  States,  the  Presi- 
dent, as  well  as  every  other  officer  of  the  government,  may  be  im- 
peached, and  may  be  removed  from  office  on  high  crimes  and  misde- 
meanors. (2)  By  the  constitution  of  Great  Britain  the  crown  is  heredi- 
tary, and  the  monarch  can  never  be  a  subject.  By  that  of  the  United 
States,  the  President  is  elected  from  the  mass  of  the  people,  and,  on 
the  expiration  of  the  time  for  which  he  is  elected,  returns  to  the  mass 
of  the  people  again.  How  essentially  this  difference  of  circumstances 
must  vary  the  policy  of  the  laws  of  the  two  countries,  in  reference  to 
the  personal  dignity  of  the  executive  chief,  will  be  perceived  by  every 
one.  In  this  respect,  the  First  Magistrate  of  the  Union  may  more  prop- 
erly be  likened  to  the  first  magistrate  of  a  State, — at  any  rate,  under  the 
former  Confederation ;  and  it  is  not  known  ever  to  have  been  doubted 
but  that  the  chief  magistrate  of  a  State  might  be  served  with  a  sub- 
poena  ad  testificandum.  If  in  any  court  of  the  United  States  it  has  ever 
been  decided  that  a  subpoena  cannot  issue  to  the  President,  that  deci- 
sion is  unknown  to  this  Court.  If  upon  any  principle  the  President 
could  be  construed  to  stand  exempt  from  the  general  provisions  of  the 
Constitution,  it  would  be  because  his  duties  as  chief  magistrate  demand 
his  whole  time  for  national  objects.  But  it  is  apparent  that  this  demand 
is  not  unremitting;  and,  if  it  should  exist  at  the  time  when  his  attend- 
ance on  a  court  is  required,  it  would  be  sworn  on  the  return  of  the 
subpoena,  and  would  rather  constitute  a  reason  for  not  obeying  the 
process  of  the  Court  than  a  reason  against  its  being  issued.  In  point 
of  fact,  it  cannot  be  doubted  that  the  people  of  England  have  the  same 
interest  in  the  service  of  the  executive  government — that  is^  of  the 
cabinet  counsel — that  the  American  people  have  in  the  service  of  the 
executive  of  the  United  States,  and  that  their  duties  are  as  arduous  and 
as  unremitting;  yet  it  has  never  been  alleged  that  a  subpoena  might  not 
be  directed  to  them.  It  cannot  be  denied  that  to  issue  a  subpoena  to  a 
person  filling  the  exalted  station  of  the  Chief  Magistrate  is  a  duty  which 
would  be  dispensed  with  more  cheerfully  than  it  would  be  performed ; 
but,  if  it  be  a  duty,  the  Court  can  have  no  choice  in  the  case.  If  then, 
as  is  admitted  by  the  counsel  for  the  United  States,  a  subpoena  may 
issue  to  the  President,  the  accused  is  entitled  to  it  of  course ;  and. 
whatever  difference  may  exist  with  respect  to  the  power  to  compel  the 
same  obedience  to  the  process  as  if  it  had  been  directed  to  a  private 
citizen,  there  exists  no  difference  with  respect  to  the  right  to  obtain  it. 
The  guard  furnished  to  this  high  officer  to  protect  him  from  lieing 
harassed  by  vexatious  and  unnecessary  subpoenas  is  to  be  looked  for  in 


542  PRIVILEGED  COMMUNICATIONS.  NO.  517. 

the  conduct  of  a  Court  after  those  subpoenas  have  issued, — not  in  any 
circumstance  which  is  to  precede  their  being  issued.  .  .  .  [As  to  the 
argument  that  reasons  of  state  might  forbid  the  disclosure,]  there 
is  certainly  nothing  before  the  Court  which  shows  that  the  letter  in 
question  contains  any  matter  the  disclosure  of  which  would  endanger 
the  public  safety;  ...  if  it  does  contain  any  matter  which  it  would 
be  imprudent  to  disclose,  which  it  is  not  the  wish  of  the  Executive 
to  disclose,  such  matter,  if  it  be  not  immediately  and  essentially  ap- 
plicable to  the  point,  will  of  course  be  suppressed.  .  .  .  Everything  of 
this  kind,  however,  will  have  its  due  consideration  on  the  return  of  the 
subpoena.  ...  I  admit,  in  such  a  case,  much  reliance  must  be  placed 
on  the  declaration  of  the  President;  .  .  .  perhaps  the  Court  ought  to 
consider  the  reasons  which  would  induce  the  President  to  refuse  to 
exhibit  such  a  letter  as  conclusive  on  it,  unless  such  letter  could  be 
shown  to  be  absolutely  necessary  in  the  defence.  The  President  may 
himself  state  the  particular  reasons  which  may  have  induced  him  to 
withhold  a  paper,  and  the  Court  would  unquestionably  allow  their  full 
force  to  those  reasons." 

To  this  subpoena,  President  Jefferson  responded,  without  attend- 
ance, by  a  letter  to  the  prosecuting  counsel,  in  which  he  offered  to  be 
examined  at  Washington  by  deposition,  but  explained  his  non-attend- 
ance at  Court  as  follows :  "As  to  our  personal  attendance  at  Richmond, 
I  am  persuaded  the  Court  is  sensible  that  paramount  duties  to  the  na- 
tion at  large  control  the  obligation  of  compliance  with  its  summons  in 
this  case;  as  it  would,  should  we  receive  a  similar  one  to  attend  the 
trials  of  Blennerhasset  and  others  [co-conspirators]  in  Mississippi  Terri- 
tory, those  instituted  at  St.  Louis  and  other  places  on  the  western  waters; 
or  at  any  place  other  than  the  seat  of  government.  To  comply  with 
such  calls  would  leave  the  nation  without  an  executive  branch,  whose 
agency  nevertheless  is  understood  to  be  so  constantly  necessary  that 
it  is  the  sole  branch  which  the  Constitution  requires  to  be  always  in 
function.  It  could  not,  then,  intend  that  it  should  be  withdrawn  from 
its  station  by  any  co-ordinate  authority."  The  President  though  for- 
warding the  desired  letter,  added  the  following:  "With  respect  to 
papers,  there  is  certainly  a  public  and  private  side  to  our  ofifices.  To 
the  former  belong  grants  of  land,  patents  for  inventions,  certain  com- 
missions, proclamations,  and  other  papers  patent  in  their  nature.  To 
the  other  belong  mere  executive  proceedings.  All  nations  have  found 
it  necessary  that  for  the  advantageous  conduct  of  their  affairs  some  of 
these  proceedings  at  least  should  remain  known  to  their  executive  func- 
tionary only.  He,  of  course,  from  the  nature  of  the  case,  must  be  the 
sole  judge  of  which  of  them  the  public  interest  will  permit  publica- 
tion."^ 

5 — Stanbery,  Attorney-General,  arguing,  was  bound,  at  the  instance  of  the  defend- 
in  Mississippi  v.  Johnson,  4  Wall.  475,  ant,  to  follow  it  up  by  process  of  attach- 
483  (1866):  "If  the  Court  Tin  Burr's  ment  to  compel  obedience  to  its  lawful 
Trial]  in  saying  that  the  President  was  order.  At  that  point,  however,  the  Court 
amenable  to  subpoena,  was  right,  the  Court  hesitated,  and  not  a  step  further  was  taken 


No.  518.  STATE  SECRETS.  543 

CooLEY,  C.  J.,  Torts,  2d  ed.,  *sy6  (1888)  :  "If  we  take  the  case  of 
legislative  officers,  their  rightful  exemption  from  liability  is  very  plain. 
Let  it  be  supposed  that  an  individual  has  a  just  claim  against  the 
State  which  the  legislature  ought  to  allow,  but  neglects  or  refuses 
to  allow.  In  such  a  case  there  may  be  a  moral  wrong,  but  there  can  be 
no  legal  wrong.  The  legislature  has  full  discretionary  authority  in 
all  matters  of  legislation,  and  it  is  not  consistent  with  this  that  the 
members  should  be  called  to  account  at  the  suit  of  individuals  for  their 
acts  and  neglects.  Discretionary  power  is,  in  its  nature,  independent; 
to  make  those  who  wield  it  liable  to  be  called  to  account  by  some  other 
authority  is  to  take  away  discretion  and  destroy  independence.  ...  If 
we  take  next  the  case  of  executive  officers,  the  rule  will  be  found  to 
be  the  same.  The  governor  of  the  State  is  vested  with  a  power  to 
grant  pardons  and  reprieves,  to  command  the  militia,  to  refuse  his 
assent  to  laws,  and  to  take  the  steps  necessary  for  the  proper  enforcement 
of  the  laws;  but  neglect  of  none  of  these  can  make  him  responsible 
in  damages  to  the  party  suffering  therefrom.  No  one  has  any  legal 
right  to  be  pardoned,  or  to  have  any  particular  law  signed  by  the  gov- 
ernor, or  to  have  any  definite  step  taken  by  the  governor  in  the  en- 
forcement of  the  laws.  The  executive  in  these  particulars  exercises 
his  discretion,  and  he  is  not  responsible  to  the  courts  for  the  manner 
in  which  his  duties  are  performed.  Moreover,  he  could  not  be  made 
responsible  to  private  parties  without  subordinating  the  executive  de- 
partment to  the  judicial  department,  and  this  would  be  inconsistent  with 
the  theory  of  republican  institutions.  Each  department,  within  its  prov- 
ince, is  and  must  be  independent.  Taking  next  the  case  of  the  judicial 
department,  the  same  rule  still  applies.     For  mere  neglect  in  judicial 

towards   enforcing   the    doctrine    laid    down  cumstances   of   each   case.      . '    .      .      There 

by     the     Chief     Justice.      It    then    became  is    no    reason    why    the    Governor    should 

quite  too  apparent  that  a  very  great  error  not    be    called    upon    to    testify    as    to    the 

had  been  committed.      I    say   a    very    great  time  when  the  engrossed  bill  was  delivered 

error,   with   the   greatest   submission   to   the  to  him.      .      .      .      But  I   will   make  no   or- 

great    Chief    Justice,    who,    on    circuit,    at  der    on    him    for    that    purpose. 

Nisi  Prius,   suddenly,   on   a  motion   of  this  Such   order   ought  not  to  be   made  against 

kind,   had   held    that   the    President    of   the  the    Executive    of    the     State,     because    it 

United    States   was   liable   to   the   subpoena  might  bring  the   Executive  in  conflict   with 

of  any    Court   as    President."  the  Judiciary.      If  the   Executive  thinks  he 

Zabriskie,    C,    in    Thompson    v.    R.    Co.,  ought    to    testify,    in    compliance    with    the 

22    N.   J.    Eq.    Ill,    113    (1871):      "The   sub-  opinion  of  the   Court,  he  will   do  it  without 

poena   was    [in    this   case]    directed    to    the  an  order;     if  he  thinks  it  to  be  his  official 

Governor  by  his  individual   name,   and  not  duty,    in    protecting   the    right   and    dignity 

SB   Governor.      Every   person,   whatever   his  of   his   office,    he   will   not  comply,   even   if 

office   or   dignity,    is   bound    to   appear    and  directed    by    an    order;     and    in    his    case, 

testify   in   courts  of  law   when   required   to  the   Court   would   hardly  entertain   procccd- 

do   so   by   proper   process,   unless   he   has  a  ings   to   compel   him   by   adjudging   him    in 

lawful    excuse.      The    official    engagements  contempt.     ...     If  the   Governor,   with- 

and    duties    of    the    higher    officers    of    the  out  sufficient  or  lawful  reasons,   refuses  to 

government    may    be,    and    in    many    cases  appear    and    testify,    he    is,    like    all    other 

are,    a    sufficient    excuse.      The    dignity    of  citizens,    liable    to    respond    in    damages    to 

the   office,   or  the  mere    fact   of   official   po-  any  party  injured  by  his  refusal." 
sition,    is    not    of    itself     an     excuse,     and  Compare     the     authorities    cited    in    W., 

whether   the    official    engagements   are   suffi-  §§  2369,   2370. 
cient    rnust    be    determined    from     the    cir- 


544 


PRIVILEGED  COMMUNICATIONS. 


No.  518. 


dirties  no  action  can  lie.  A  judge  cannot  be  sued  because  of  delaying 
his  judgments,  or  because  he  fails  to  bring  to  his  duties  all  the  care, 
prudence  and  diligence  that  he  ought  to  bring,  or  because  he  decides  on 
partial  views  and  without  sufficient  information.  His  selection  for  his 
office  implies  that  he  is  to  be  governed  in  it  by  his  own  judgrpent;  and 
it  is  always  to  be  assumed  that  that  judgment  has  been  honestly  exer- 
cised and  applied.  .  .  .  For  all  duties  the  time,  manner  and  extent  of 
the  performance  of  which  are  left  to  the  wisdom,  integrity  and  judg- 
ment of  the  officer  himself,  it  is  conceded  that,  as  a  general  rule,  the 
only  liability  of  the  officer  is  to  the  criminal  law,  in  case  he  shall  wrong- 
fully and  maliciously  neglect  to  perform  his  duties,  or  shall  perform 
them  improperly.  Duties  of  this  nature  are  usually  spoken  of  as  duties 
in  the  exercise  of  discretionary  and  judicial  powers,  and  it  is  deemed 
a  conclusive  answer  to  any  private  action  for  an  injury  resulting  from 
neglect  or  unfaithful  performance  to  say  that  where  a  matter  is  trusted 
to  the  discretion  or  judgment  of  an  officer,  the  very  nature  of  the  au- 
thority is  inconsistent  with  responsibility  in  damages  for  the  manner 
of  its  exercise,  since  to  hold  the  officer  to  such  responsibility  would  be 
to  confer  a  discretion  and  then  make  its  exercise  a  wrong." 


BEATSON  v.  SKENE    (i860). 

5  H.  &  N.  838,  833. 

Libel.  The  plaintiff,  Skene,  was  a  general  of  cavalry.  At  the  close 
of  the  Crimean  war  he  was  superseded  in  command,  and  resigned.  An 
investigation  into  the  state  of  the  corps  was  made  by  General 
^  '^  Shirley,  whose  secretary  and  commissioner  the  defendant  Beat- 
son  was.  The  defendant  reported  to  his  superior  that  the  plaintiff  had 
stirred  up  mutiny  in  the  corps,  and  afterwards  so  testified  as  a  wit- 
ness before  a  military  court  of  inquiry  held  to  investigate  General 
Shirley's  alleged  libel  on  the  plaintiff.  For  this  testimony  the  plain- 
tiff's suit  for  libel  was  brought ;  and  he  sought  production,  in  his  proof, 
of  the  military  court's  minutes  of  the  defendant's  testimony,  and  of  the 
plaintiff's  own  letters  to  the  Secretary  of  War. 

Bovill  and  Garth  showed  cause:  "First,  the  learned  Judge  was  cor- 
rect in  refusing  to  compel  the  production  of  the  letters  and  minutes 
of  the  Court  of  Inquiry,  the  Secretary  of  State  for  War  having  objected 
to  produce  them,  on  the  ground  that  their  production  would  be  preju- 
dicial to  the  public  service.  It  is  clear  that  evidence  may  be  excluded, 
where   the    disclosure    would    be   prejudicial   to    public   interests ."  .  .  . 

Edzvin  James  and  Gray,  in  support  of  the  rule:  "First,  the  learned 
Judge  ought  to  have  compelled  the  production  of  the  letters  and  min- 
utes of  the  Court  of  Inquiry,  which  the  Secretary  for  War  was  sub- 
poenaed to  produce.  The  letters  were  not  confidential  communications, 
but  were  written  by  the  plaintiff  in  explanation  of  his  conduct,  and  for 
the  purpose  of  showing  the  motives  by  which  he  was  actuated.     There 


No.  519.  STATE    SECRETS.  545 

is  no  authority  that  under  such  circumstances  the  Secretary  for  War 
was  entitled  to  withhold  them.  The  case  is  totally  different  from  that 
of  a  confidential  report  made  by  a  military  officer  to  the  Secretary  for 
War,  which  it  is  conceded  would  be  privileged." 

Pollock,  C.  B.  :  "We  are  of  opinion  that  it  cannot  be  laid  down 
that  all  public  documents,  including  treaties  with  foreign  powers  and 
all  the  correspondence  that  may  precede  or  accompany  them,  and  all 
communications  to  the  heads  of  departments,  are  to  be  produced  and 
made  public  whenever  a  suitor  in  a  court  of  justice  thinks  that  his 
case  requires  such  production.  It  is  manifest,  we  think,  that  there 
must  be  a  limit  to  the  duty  or  the  power  of  compelling  the  production 
of  papers  which  are  connected  with  acts  of  State.  As  an  instance, 
we  would  put  the  case  of  a  British  minister  at  a  foreign  Court  writing 
in  that  capacity  a  letter  to  the  Secretary  of  State  for  Foreign  Affairs 
in  this  country,  containing  matter  injurious  to  the  reputation  of  a  for- 
eigner or  a  British  subject ;  can  it  be  contended  that  the  person  referred 
to  would  have  a  right  to  compel  the  production  of  the  letter  in  order 
to  take  the  opinion  of  a  jury  whether  the  injurious  matter  was  writ- 
ten maliciously  or  not?  We  are  of  opinion  that,  if  the  production 
of  a  State  paper  would  be  injurious  to  the  public  service,  the  general 
public  interest  must  be  considered  paramount  to  the  individual  interest- 
of  a  suitor  in  a  court  of  justice;  and  the  question  then  arises,  how  is 
this  to  be  determined? 

"It  is  manifest  it  must  be  determined  either  by  the  presiding  Judge 
or  by  the  responsible  servant  of  the  Crown  in  whose  custody  the  paper 
is.  The  Judge  would  be  unable  to  determine  it  without  ascertaining 
what  the  document  was,  and  why  the  publication  of  it  would  be  in- 
jurious to  the  public  service — an  inquiry  which  cannot  take  place  in 
private,  and  which  taking  place  in  public  may  do  all  the  mischief 
which  it  is  proposed  to  guard  against.  It  appears  to  us  therefore,  that 
the  question,  whether  the  production  of  the  documents  would  be  in- 
jurious to  the  public  service,  must  be  determined,  not  by  the  Judge 
but  by  the  head  of  the  department  having  the  custody  of  the  paper ; 
and  if  he  is  in  attendance  and  states  that  in  his  opinion  the  produc- 
tion of  the  document  would  be  injurious  to  the  public  service,  we  think 
the  Judge  ought  not  to  compel  the  production  of  it.  The  administration 
of  justice  is  only  a  part  of  the  general  conduct  of  the  affairs  of  any 
State  or  Nation,  and  we  think  is  (with  respect  to  the  production  or 
non-production  of  a  State  paper  in  a  Court  of  justice)  sul)ordinate  to 
the  general  welfare  of  the  community."" 

6 — Field,  J.,   in  Hcnnessy   v.    Wright,   L.  in    the    discharee     of     their     duty    to    the 

R.    21    Q.    B.    D.    509,   512    (1888):    "There  Crown,    were   liable    to    be    made   public    in 

are    two    aspects    of    this    question.      First,  a   court  of   justice   at    the   instance   of  any 

the   publication    of   a    State    document   may  suitor   who  thought  proper  to  say  'fiat  jus- 

involve  danger  to  the  nation.      If  tiie  confi-  titia   mat   coelum,'    an    order    for    discovery 

dential    communications    made    by    servants  might   involve    the   country    in    a   war.     Sec- 

of    the    Crown    to    each    other,    by    superiors  ondly,  the  publication  of  a  State  paper  may 

to    inferiors    or    by    inferiors    to    superiors,  be    injurious    to    servants    of    the    Crown   as 


546  PRIVILEGED  COMMUNICATIONS.  No.  520, 


6.     Physician  and  Patient. 

DUCHESS  OF  KINGSTON'S  TRIAL    (1776). 
20  How.  St.  Tr.  5ys- 

Bigamy.  Mr.  Hawkins,  a  physician,  who  had  attended  the  accused 
and  her  alleged  husband,  was  asked:  "Do  you  know  from  the  parties 
of  any  marriage  between  them  ?"  Ans. :  "I  do  not  know  how 
^^^  far  anything  that  has  come  before  me  in  a  confidential  trust  in 
my  profession  should  be  disclosed,  consistent  with  my  professional 
honor." 

Mansfield,  L.  C.  J.:  "If  all  your  lordships  will  acquiesce,  Mr. 
Hawkins  will  understand  that  it  is  your  judgment  and  opinion  that  a 
surgeon  has  no  privilege,  where  it  is  a  material  question  in  a  civil  or 
criminal  cause  to  know  whether  parties  were  married  or  whether  a 
child  was  born,  to  say  that  his  introduction  to  the  parties  was  in  the 
course  of  his  profession  and  in  that  way  he  came  to  the  knowledge  of 
it.  ...  If  a  surgeon  was  voluntarily  to  reveal  these  secrets,  to  be  sure, 
he  would  be  guilty  of  a  breach  of  honor  and  of  great  indiscretion ;  but 
to  give  that  information  in  a  court  of  justice  which  by  the  law  of  the 
land  he  is  bound  to  do,  will  never  be  imputed  to  him  as  any  indiscre- 
tion whatever."^ 


Commissioners  on  the  Revision  of  the  Statutes  of  New  York, 
///,  757  (1836)  :  "The  ground  on  which  communications  to  counsel 
are  privileged,  is  the  supposed  necessity  of  a  full  knowledge  of  the 
facts,  to  advise  correctly,  and  to  prepare  for  the  proper  defense 
or  prosecution  of  a  suit.  But  surely  the  necessity  of  consulting  a 
medical  adviser,  when  life  itself  may  be  in  jeopardy,  is  still  stronger. 
And  unless  such  consultations  are  privileged,  men  will  be  incidentally 
punished  by  being  obliged  to  suffer  the  consequences  of  injuries  with- 
out relief  from  the  medical  art,  and  without  conviction  of  any  offence. 
Besides,  in  such  cases,  during  the  struggle  between  legal  duty  on  the 
one  hand,  and  professional  honor  on  the  other,  the  latter,  aided  by  a 
strong  sense  of  the  injustice  and  inhumanity  of  the  rule,  will,  in  most 
cases,  furnish  a  temptation  to  the  perversion  or  concealment  of  truth, 
too  strong  for  human  resistance." 


individuals;    there  would  be  an  end  of  all  should   be    produced   openly   in   a   court   of 

freedom   in   their   official  communications   if  justice." 

they  knew  that  any  suitor,   that  as   in   this  Compare    the    authorities    cited    in      W., 

case    any    one    of    their    own    body    whom  §  2373. 

circumstances   had    made     a     suitor,     could  7 — Compare  the  authorities    cited    in  W., 

legally    insist    that    any    official    communica-  §  2380. 

tion,   of  no  matter  how  secret  a  character, 


No.  523.  PHYSICIAN   AND   PATIENT.  547 

Statutes.  California:  C.  C.  P.  1872,  §1881,  par.  4:  "A  licensed 
physician  or  surgeon  cannot,  without  the  consent  of  his  patient,  be 
examined  in  a  civil  action  as  to  any  information  acquired  in 
"^^  attending  the  patient  which  was  necessary  to  enable  him  to 
prescribe  or  act  for  the  patient";  amended  by  the  Commission  of  1901 
by  adding:  "but  this  subdivision  does  not  apply  in  an  action  between 
a  physician  or  surgeon  and  his  patient  in  which  the  treatment  of  the 
patient  by  the  physician  or  surgeon  is  in  issue;  and  provided  that  in  an 
action  brought  under  sections  376  and  377  [for  death  by  wrongful  act] 
a  physician  or  surgeon  is  competent  to  testify  as  to  the  cause  of  the 
death  of  the  deceased." 

New  York :  C.  C.  P.  1877,  §  834 :  "A  person  duly  authorized  to 
practice  physic  or  surgery  shall  not  be  allowed  to  disclose  any  infor- 
mation which  he  acquired  in  attending  a  patient  in  a  professional 
capacity  and  which  was  necessary  to  enable  him  to  act  in  that  ca- 
pacity." lb.,  §  836,  including  amendments  added  by  St.  1897-1899;  the 
preceding  section  not  to  apply  if  "expressly  waived  upon  the  trial  or 
examination"  by  the  patient;  moreover,  except  for  "confidential  com- 
munications and  such  facts  as  would  tend  to  disgrace  the  memory  of 
the  patient,"  express  waiver  by  the  personal  representative  of  the  de- 
ceased suffices,  or,  in  testamentary  controversies,  by  the  executor,  sur- 
viving husband,  widow,  heir,  or  next  of  kin. 

Oregon:  Annot.  C.  1892,  §712,  par.  4  (like  Cal.  C.  C.  P.  §1881, 
unamended).  lb.,  §713:  "If  a  party  to  the  suit,  action,  or  proceeding 
ofYer  himself  as  a  witness,  that  is  to  be  deemed  a  consent  to  the  exam- 
ination also  of  a  wife,  husband,  attorney,  clergyman,  physician,  or 
surgeon,  on  the  same  subject,  within  the  meaning  of  subdivisions  i,  2, 
3,  and  4  of  the  last  section."® 


GARTSIDE  V.  INSURANCE  CO.    (1882). 
76  Mo.  446. 

Norton,  J. :  "This  suit  was  instituted  in  the  circuit  court  of  the 
city  of  St.  Louis,  on  a  policy  of  insurance  to  recover  a  death  loss.  On 
the  trial  judgment  was  rendered  for  defendant,  which,  on  plain- 
tiff's appeal  to  the  St.  Louis  court  of  appeals^  was  reversed,  and 
from  the  judgment  of  reversal  defendant  prosecutes  an  appeal  to  this 
court. 

"The  only  question  presented  on  said  appeal  for  our  determina- 
tion is,  whether  a  physician,  who  is  called  to  visit  a  patient,  when  intro- 
duced as  a  witness,  can  be  required  or  allowed  to  disclose  any  informa- 
tion acquired  by  him  from  such  patient  either  orally,  by  signs  or 
by  observation  of  the  patient  after  he  has  submitted  himself 
for  examination,  which  information  was  necessary  to  enable  him  to 
prescribe  for  such  patient.     An  affirmative  answer  reverses,  and  a  nega- 

8 — Compare  the  authorities    cited  in  W.,  §  2380. 


548  PRIVILEGED  COMMUNICATIONS.  No.  523, 

tive  answer  affirms  the  judgment,  and  the  sokition  of  the  question  is 
dependent  upon  a  construction  of  the  fifth  subdivision  of  section  4017, 
Revised  Statutes,  which  declares  that  the  following  persons  shall  be  in- 
competent to  testify,  viz :  .  .  .  'A  physician  or  surgeon,  concerning 
any  information  which  he  may  have  acquired  from  any  patient  while 
attending  him  in  a  professional  character,  and  which  information  was 
necessary  to  enable  him  to  prescribe  for  such  patient  as  a  physician, 
or  do  any  act  for  him  as  a  surgeon.' 

"It  is  contended  upon  the  one  hand  that  the  above  statute  was  only 
designed  and  intended  to  forbid  the  disclosure  of  such  information  as 
a  physician  while  attending  a  patient  acquires  orally  from  the  patient. 
It  is  contended,  on  the  other  hand,  that  the  statute  forbids,  not  only 
information  acquired  through  the  ear  by  oral  communication,  but  also 
all  information  acquired  through  the  eye  by  observation  or  examination 
of  the  patient  after  he  has  submitted  himself  to  the  care  of  the 
physician  for  examination  and  treatment.  In  settling  this  con- 
tention, and  in  determining  the  proper  construction  to  be  placed  on 
said  section  4017,  we  feel  authorized  to  look  at  the  adjudications  in 
other  states  having  similar  statutes.  .  .  . 

"While  it  is  true  that  the  phraseology  of  our  statute  is  different 
in  the  above  respect  from  the  New  York  statute,  it  is  also  true  that 
the  object  intended  to  be  accomplished  by  both  is  the  same^  and  the 
meaning  of  both  is  the  same  when  construed  with  reference  to  the 
object  intended  to  be  brought  about,  viz :  casting  'the  veil  of  privilege' 
or  secrecy  over  information  acquired  by  a  physician  while  professionally 
engaged  in  the  sick  chamber,  and  necessary  to  enable  him  to  prescribe. 
Information  acquired  by  a  physician  from  inspection,  examination  or 
observation  of  the  person  of  the  patient,  after  he  has  submitted  him- 
self to  such  examination,  may  as  appropriately  be  said  to  be  acquired 
from  the  patient  as  if  the  same  information  had  been  orally  com- 
municated by  the  patient.  The  construction  contended  for  by  defend- 
ant's counsel,  that  by  the  statute  a  physician  is  forbidden  to  disclose 
only  such  information  as  may  have  been  communicated  to  him  orally 
by  his  patient,  would,  in  our  opinion,  nullify  the  law.  To  hold  that, 
while  under  the  statute  a  physician  would  be  forbidden  from  disclos- 
ing a  statement  made  to  him  by  his  patient  that  he  was  suffering  from 
syphilis ;  and  to  allow  him  to  state  as  the  result  of  his  observation  and 
examination  of  the  patient  that  he  was  diseased  with  syphilis  would 
be  to  make  the  statute  inconsistent  with  itself.  It  is  doubtless  true 
that  a  physician  learns  more  of  the  condition  of  a  patient  from  his  own 
diagnosis  of  the  case  than  from  what  is  communicated  by  the  words 
of  the  patient ;  and  to  say  that  while  the  mouth  of  the  physician  is 
sealed  as  to  the  information  acquired  orally  from  his  patient,  it  is 
opened  wide  as  to  information  acquired  from  a  source  upon  which 
he  must  rely,  viz :  his  own  diagnosis  of  the  case,  would  be  to  restrict 
the  operation  of  the  statute  to  narrower  limits  than  was  ever  intended 
by  the  legislature  and  virtually  to  overthrow  it. 


No.  524.  PRIEST  AND  PENITENT.  549 

"It  follows  from  what  has  been  said  that  the  circuit  court  erred 
in  permitting  Drs.  Gregory  and  Bauduy,  two  physicians,  to  give  in 
evidence  the  information  acquired  by  them  while  attending  Gartside, 
their  patient,  professionally,  although  such  information  was  acquired 
not  from  what  the  patient  said  but  from  observation  and  examina- 
tion."» 


7.    Priest  and  Penitent. 

REGINA  V.  HAY    (i860). 
2  F.  &  F.  4. 

William  Hay,  aged  twenty-two,  pitman,  was  charged  with  robbing 
Daniel  Kennedy  of  a  silver  watch,  at  Jarrow,  on  the  25th  December. 
.  .  .  Inspector  Rogers,  by  whom  the  prisoner  was  apprehended, 
*'^*  stated  that  from  information  he  received  he  went  to  the  house 
of  the  Rev.  John  Kelly,  a  Roman  Catholic  priest,  from  whom  he  re- 
ceived a  watch,  which  the  prosecutor  identified  as  his  property,  and 
who  was  now  called. 

The  crier  of  the  Court  was  about  to  administer  the  oath  to  him, 
when  he  objected  to  the  form  of  the  oath. 

Hill,  J.:     "What  is  the  objection?" 

Rev.  Mr.  Kelly:  "Not  that  I  shall  tell  the  truth,  and  nothing  but 
the  truth;  but,  as  a  minister  of  the  Catholic  Church,  I  object  to  the 
part  that  states  that  I  shall  tell  the  whole  truth." 

Hill,  J. :  "The  meaning  of  the  oath  is  this :  it  is  the  whole  truth 
touching  the  trial  which  you  are  asked ;  which  you,  legitimately  accord- 
ing to  law,  can  be  asked.  If  anything  is  asked  of  you  in  the  witness- 
box  which  the  law  says  ought  not  to  be  asked — for  instance,  if  you  are 
asked  a  question  the  answer  of  which  might  criminate  yourself — you 
would  be  entitled  to  say,  T  object  to  answer  that  question,  because  the 
answer  might  criminate  myself,'  and  the  law  would  sustain  the  objec- 
tion. You  can  therefore  have  no  objection  as  a  loyal  subject,  and 
in  duty  to  the  laws  of  the  country,  to  answer  the  whole  truth  touching 
the  case  which  may  be  lawfully  asked.    Therefore  you  must  be  szvorn." 

The  witness  took  the  oath  in  the  usual  form,  and  gave  the  follow- 
ing evidence: — "I  have  been  twelve  years  Catholic  priest  at  the  Fell- 
ing.    On  Christmas-day  I  received  the  watch  produced." 

Headlam  then  asked,  "From  whom  did  you  receive  that  watch?" 

Witness:     "1  received  it  in  connection  with  the  confessional." 

Hill,  J.:  "You  are  not  asked  at  present  to  disclose  anything  stated 
to  you  in  the  confessional ;  you  are  asked  a  simple  fact — from  whom 
did  you  receive  that  watch  which  you  gave  to  the  policeman." 

Witness:  "The  reply  to  that  question  would  implicate  the  per?on 
who  gave  me  the  watch,  therefore  I  cannot  answer  it.     If  I  answered 

9 — Compare  the  authorities    cited    in  VV.,  §  2384. 


550 


PRIVILEGED  COMMUNICATIONS. 


No.  524. 


it,  my  suspension  for  life  would  be  a  necessary  consequence.  I  should 
be  violating  the  laws  of  the  Church,  as  well  as  the  natural  laws." 

HiLL^  J.:  "I  have  already  told  you  plainly  I  cannot  enter  into  this 
question.  All  I  can  say  is,  you  are  bound  to  answer,  'From  whom  did 
you  receive  that  watch?'  On  the  ground  I  have  stated  to  you,  you  are 
not  asked  to  disclose  anything  that  a  penitent  may  have  said  to  you 
in  the  confessional.  That  you  are  not  asked  to  disclose;  but  you  are 
asked  to  disclose  from  whom  you  received  stolen  property  on  the  25th 
of  December  last.     Do  you  answer  it,  or  do  you  not?" 

Witness:     "I  really  cannot,  my  lord," 

Hill,  J.:  "Then  I  adjudge  you  to  be  guilty  of  contempt  of  Court, 
and  order  you  to  be  committed  to  gaol.  [To  the  officer  of  the  Court] 
— Take  him  into  custody." 

The  witness  was  accordingly  removed  in  custody. 


Statutes.     New  York:     C.  C.  P.   1877,  §833:     "A  clergyman  or 
other  minister  of  any  religion  shall  not  be  allowed  to  disclose  a  con- 
fession made  to  him  in  his  professional  character  in  the  course 
^^^      of  discipline  enjoined  by  the  rules  or  practice  of  the  religious 
body  to  which  he  belongs."^** 


10 — Compare  the  authorities  cited  in  W.,  §§  2394,  2395. 


No.  526.  BOOK  I.  .  551 


PART  IV. 

PAROL  EVIDENCE  RULE. 

(CONSTITUTION   OF  LEGAL  ACTS.) 

General  Nature  and  Scope  of  the  Rule.^^  "I.  At  the  outset  certain 
discriminations  must  be  kept  in  mind:  (i)  First  and  foremost,  the 
rule  is  in  no  sense  a  rule  of  evidence,  but  a  rule  of  substantive 
***'"  law.  It  does  not  exclude  certain  data  because  they  are  for  one 
or  another  reason  untrustworthy  or  undesirable  means  of  evi- 
dencing some  fact  to  be  proved.  It  does  not  concern  a  proba- 
tive mental  process, — the  process  of  believing  one  fact  on  the  faith 
of  another.  What  the  rule  does  is  to  declare  that  certain  kinds 
of  fact  are  legally  ineffective  in  the  substantive  law;  and  this  of  course 
(like  any  other  ruling  of  substantive  law)  results  in  forbidding  the 
fact  to  be  proved  at  all.  But  this  prohibition  of  proving  it 
is  merely  the  dramatic  aspect  of  the  process  of  applying  the  rule  of 
substantive  law.  When  a  thing  is  not  to  be  proved  at  all,  the  rule  of 
prohibition  does  not  become  a  rule  of  evidence  merely  because  it  comes 
into  play  when  the  counsel  offers  to  'prove'  it  or  give  'evidence'  of  it ; 
otherwise,  any  rule  of  law  whatever  might  be  reduced  to  a  rule  of 
evidence;  a  ruling  (for  example)  that  on  a  plea  of  self-defence,  in  an 
action  of  battery,  no  evidence  of  the  plaintiff's  insulting  words  is  to 
be  received,  would  become  the  legitimate  progeny  of  the  law  of  evi- 
dence. ,  .  .  Let  us  dismiss,  then,  once  for  all,  any  notion  that  the 
parol-evidence  rule,  in  any  of  its  aspects,  is  concerned  with  any  pre- 
cautions or  limitations  based  on  probative  value,  or  indeed  with  any 
regulation  of  evidence  in  the  legitimate  sense  of  that  word.  This  will 
be  the  first  step  to  a  clear  understanding  of  the  working  of  the  rule. 

"(2)  Next,  the  matter  excluded  by  the  rule  is  not  inherently  or 
even  most  commonly  anything  that  can  he  properly  termed  'parol.' 
That  word  (in  spite  of  its  numerous  other  derived  applications)  signi- 
fies and  implies  essentially  the  idea  'oral,'  i.  e.  matter  of  speech,  as  con- 
trasted with  matter  of  writing.  Now,  so  far  as  the  phrase  'parol-evidence 
rule'  conveys  the  impression  that  what  is  excluded  is  excluded  because  it 
is  oral — because  somebody  spoke  or  acted  other  than  in  writing,  or  is 
now  offering  to  testify  orally — ,  that  impression  is  radically  incorrect. 
When  the  prohibition  of  the  rule  is  applicable,  what  is  excluded  may 
equally  be  written  as  oral.^may  be  letters  and  telegrams  as  well  as 
conversations ;  and  where  the  prohibition  is  applicable  on  the  facts 
to  certain  written  material,  nevertheless  for  the  very  same  transaction 
certain  oral  material  may  not  be  prohibited.  So  that  the  term  'parol' 
not  only  affords  no  necessary  clue  to  the  material  excluded,  but  is  even 

II — Quoted    from    W.,    §§  2400,    2401. 


552  PAROL   EVIDENCE   RULE.  No.  526. 

positively  misleading.  It  must  be  understood  to  be  employed  in  a 
purely  unnatural  and  conventional  sense. 

"(3)  There  is  no  one  and  undivided  parol-evidence  rule.  There 
are  at  least  four  distinct  principles  or  bodies  of  doctrine.  They  con- 
cern a  common  subject — legal  acts — ,  but  their  content  and  details  are 
separate  and  distinct.  The  case  lies  very  much  as  if  we  possessed  one 
term  'action'  for  all  the  various  forms  of  remedial  procedure.  It  is 
true  enough  that  they  all  may  be  looked  upon  as  mere  species  of  the 
general  notion  of  a  remedy,  but  it  would  be  by  all  conceived  impossible 
to  discuss  the  details  of  mandamus,  certiorari,  injunction,  capias,  re- 
plevin, bill  in  chancery,  action  on  the  case,  scire  facias,  subpoena,  and 
the  rest  with  no  better  word-materials  than  the  one  word  'action.'  'Yet 
this  is  not  far  from  the  impossible  task  which  has  been  attempted  with 
the  term  'parol-evidence  rule.'  There  is  no  one  generalization  for  that 
rule, — at  least  none  which  has  any  practical  consequence.  The  four 
general  groups  of  doctrine  which  go  to  make  up  the  whole  have  a  sep- 
arate set  of  rules ;  the  chief  problem  in  their  application  is  to  ascer- 
tain which  kind  of  rule  in  involved  in  the  case  in  hand,  and  to  keep 
one  from  being  mistaken  for  another. 

"(4)  The  parol-evidence  rule  is  not  the  only  rule  which  concerns 
the  use  of  written  things.  There  are  several  other  rules,  with  which 
it  has  nothing  to  do,  that  also  have  something  to  say  about  writings, — 
the  chief  of  which  are  the  rule  about  Producing  Documentary  Originals 
and  the  rule  about  Authenticating  Documents.  These  are  rules  of  evi- 
dence in  the  genuine  sense,  and  the  term  'parol'  is  often  naturally  em- 
ployed (especially  with  the  former)  in  discussing  them.  But  they  are 
of  no  kith  or  kin  with  the  Parol-Evidence  rule  proper,  as  here  involved, 
i.  e.  the  rule  of  substantive  law.  Their  difference  from  the  present 
rule  is  plain  enough ;  but  the  false  nomenclature  of  the  latter  has  some- 
times caused  a  relation  between  them  to  be  suspected. 

"(5)  Finally,  it  needs  to  be  insisted,  in  opposition  to  the  popular 
and  natural  view  which  tends  to  thrust  itself  forward  at  trials,  that 
a  writing  has  no  efficacy  per  se,  but  only  in  consequence  of  and  de- 
pendence upon  other  circumstances  external  to  itself.  The  exhibition 
of  a  writing  is  often  made  as  though  it  possessed  some  intrinsic  and 
indefinite  power  of  dominating  the  situation  and  quelling  further  dis- 
pute. But  it  needs  rather  to  be  remembered  that  a  writing  is^  of  itself 
alone  considered,  nothing — simply  nothing.  It  must  take  life  and  effi- 
cacy from  other  facts,  to  which  it  owes  its  birth ;  and  these  facts,  as 
its  creator,  have  as  great  a  right  to  be  known  and  considered  as  their 
creature  has.  Granting  that  there  is  a  writing  before  us:  Has  it  been 
brought  home  to  anybody  as  his  act?  Was  it  meant  to  supersede  other 
materials?  Was  it  essential  to  the  transaction?  What  external  ob- 
jects does  it  apply  to?  These  are  questions  which  cannot  be  answered 
without  looking  away  from  the  writing  to  other  data;  and  vmtil  they 
are  answered  the  efficacy  of  the  writing  is  merely  hypothetical.  There 
is  no  magic  in  the  writing  itself.    It  hangs  in  mid-air,  incapable  of  self- 


No.  526.  INTRODUCTION.  553 

support,  until  some  foundation  of  other  facts  has  been  built  for  it.  So 
far  as  the  parol-evidence  rule  is  concerned  with  writings  at  all,  it  con- 
cerns these  questions  of  the  relation  between  the  writing  and  other 
data,  and  it  points  out  what  other  data  are  essential  and  available  for 
the  proper  use  of  the  writing.  It  conduces  to  a  sound  understanding 
of  the  rule  if  we  dispel  wholly  that  natural  notion  which  falsely  at- 
tributes to  a  writing  some  mystic  independence  and  automatism. 

"In  short,  then,  (i)  the  parol-evidence  rule  is  not  a  rule  of  evi- 
dence; (2)  nor  is  it  a  rule  for  things  parol;  (3)  nor  is  it  a  single  rule; 
(4)  nor  is  it  all  of  the  rules  that  concern  either  parol  or  writing;  (5)  nor 
does  it  involve  the  assumption  that  a  writing  can  possess,  independently 
of  the  surrounding  circumstances,  any  inherent  status  or  efficacy. 

"II.  What,  then,  is  the  Parol-Evidence  rule?  It  concerns  the 
constitution  of  legal  acts.  This  requires  a  brief  notice  of  the  nature 
of  legal  acts. 

"Only  a  small  part  of  conduct  is  legal  conduct,  i.  e.  conduct  having 
legal  efifectiveness.  The  nature  and  effect  of  such  conduct  as  will 
be  given  legal  effect  is  therefore  a  question  of  general  consequences  in 
all  departments  of  the  law.  Leaving  aside  the  field  of  crimes  (which 
deals  with  the  relation  between  State  and  individual)  and  of  torts  (which 
deals  with  irrecusable  or  involuntary  civil  relations)  we  are  here  con- 
cerned with  voluntary  relations,  i.  e.  those  relations  which  may  be  cre- 
ated, transferred,  or  extinguished  by  will  of  the  parties.  The  conduct 
which  is  allowed  to  have  such  effect  is  a  legal  act} 

"For  the  purpose  of  specific  varieties  of  legal  acts — sale,  contract, 
release,  and  so  on — ,  there  are  specific  requirements,  varying  accord- 
ing to  the  subject.  But  there  are  also  certain  fundamental  elements, 
common  to  all,  and  capable  of  being  generalized.  These  elements  pre- 
sent problems  which  run  through  all  the  varieties  of  legal  acts,  and 
must  therefore  be  analyzed  and  discussed  in  union.  Their  principles, 
when  applied  to  specific  kinds  of  acts,  usually  give  substantially  simi- 
lar results ;  and,  when  they  do  not,  it  is  merely  because  special  cir- 
cumstances call  for  local  variances.  What  has  to  be  done,  therefore, 
is  to  compare  under  one  head  the  principles  common  to  all  legal  acts, 
and  to  take  account  of  the  specific  variations  for  specific  kinds  of  acts. 
This  is  what  the  'parol  evidence'  rule  does  in  our  law. 

"These  principles  fall  into  four  groups,  marking  the  four  possible 
elements  of  every  legal  act:  (A),  The  Enaction,  or  Creation,  of  the 
act;  (B),  its  Integration,  or  embodiment  in  a  single  memorial,  when 
desired;  (C),  its  Solemnization,  or  fulfilment  of  the  prescribed  forms, 
if  any;   and   (D),  the  Interpretation,  or  application  of  the  act  to  the 

I — "There   is   a    very   important   class    of  schaftc,    Frenchmen    call    them    actes    juri- 

acts   in   which   the   legal    result   follows   be-  diqucs.       English     lawyers     have     not     yet 

cause    that    result    was    itself    contemplated  agreed    upon    any    name    for    them.      The 

and    desired    as    one    of    the    consequences  terms    'juristic   acts*   and    'acts    in   the   law' 

of   the   act.      From   the    fact   that    legal    re-  have    been    suggested"    (Markby,    Elements 

suits  are  in  contemplation   in   this   class  of  of  Law,   3d  ed.,   §   235). 
acts,    the    Germans     call     them     Rechtsge- 


554  PAROL   EVIDENCE   RULE.  NO.  526. 

external  objects  affected  by  it.  Of  these  four,  the  first  and  the  fourth 
are  necessarily  involved  in  every  legal  act;  the  second  and  the  third 
may  or  not  become  praictically  important,  but  are  always  possible  ele- 
ments. 

"A.  The  Enaction,  or  Creation,  of  an  act  is  concerned  with  the 
question  whether  any  legal  act  at  all,  or  a  legal  act  of  the  alleged  tenor, 
has  been  consummated;  or,  if  consummated,  whether  the  circumstances 
attending  its  creation  authorize  its  avoidance  or  annulment.  iJnder 
the  first  head  arise  the  questions  whether  a  writing  is  anything  more 
than  a  preparatory  draft,  whether  it  has  been  completed  by  delivery, 
whether  its  tenor  is  to  be  judged  by  its  actual  words  or  the  intended 
words,  and  the  like.  Under  the  second  head  arise  the  questions  whether 
it  can  be  avoided  because  of  mistake,  fraud,  or  duress,  affecting  the 
motive  leading  to  its  enaction. 

"B,  The  Integration  of  the  act  consists  in  embodying  it  in  a 
single  utterance  or  memorial, — commonly,  of  course,  a  written  one. 
This  process  of  integration  may  be  required  by  law,  or  it  may  be  adopted 
voluntarily  by  the  actor  or  actors;  and,  in  the  latter  case,  either  wholly 
or  partially.  Thus  the  question  in  its  usual  form  is  whether  a  particu- 
lar document  is  the  one  deemed  by  law  to  be  the  sole  memorial  of  the 
act,  or  how  far  a  particular  document  was  intended  by  the  parties  to 
cover  certain  subjects  of  transaction  between  them  and  therefore  to 
deprive  of  legal  effect  all  their  other  utterances. 

"C.  The  Solemnization  of  the  act  concerns  the  forms  which  are 
required  by  law  to  attend  it  in  order  to  give  it  legal  effect.  This  always 
becomes  a  question  of  some  particular  subject  in  the  law,  because  there 
is  no  universal  formality  required  in  common  for  all  acts.  Thus  the 
formalities  of  attestation,  seal,  registration,  and  the  like  are  essen- 
tial for  some  but  not  for  other  acts.  Writing  is  naturally  the  most 
important  and  most  common  instance  of  a  required  formality.  The 
resort  to  writing  may  sometimes  be  an  instance  of  Integration  and 
sometimes  of  Solemnization,  but  either  may  exist  without  the  other. 

"D.  The  Interpretation  of  an  act  is  the  application  of  it  to  external 
objects,  in  the  process  of  defining  and  enforcing  the  right  or  obliga- 
tion affected  by  its  terms.  The  words  of  a  legal  act  are  merely  the 
symbols  by  which  the  actor  indicates  the  external  objects  which  the 
act  is  expected  to  effect — a  lot  of  land  or  a  barrel  of  sugar  or  John 
Doe  the  legatee.  The  connection  between  these  words  and  their  pos- 
sible objects  must  be  judicially  established  before  the  terms  of  the  act 
can  be  given  the  effects  expected  by  the  parties.  In  this  process  of  In- 
terpretation, the  main  questions  concern  the  standard  of  meaning  to  be 
adopted  and  the  data  which  may  be  used  in  determining  that  meaning. 

"For  these  four  elements  in  the  act,  the  principles  are  independent 
of  each  other, — so  independent,  indeed,  that  they  sometimes  appear  to  be 
contradictory;  and  the  chief  inherent  difficulty  in  their  application 
arises  from  the  necessity  of  distinguishing  which  element  and  which 
principle  is  really  involved." 


No.  527.  A.   CREATION  OF  LEGAL  ACTS.  555 

A.     CREATION  OF  LEGAL  ACTS. 
/.    Subject;  Delivery. 

EARLE  V.  RICE    (1872). 
///  Mass.  //. 

Bill  in  equity  against  William  W.  Rice,  Thomas  L.  Nelson,  Thomas 
Earle,  Philip  Henry  Earle,  Ellen  Chase  Earle,  and  Thomas  H.  Earle, 
the  last  four  being  minor  children  of  the  plaintiff  and  the  defend- 
**•''  ant  Thomas  Earle,  praying  that  a  paper  signed  by  the  plaintiff 
and  Thomas  Earle  might  be  delivered  up  to  be  cancelled,  and  that  Rice 
and  Nelson  might  deliver  to  the  plaintiff"  the  proceeds  of  the  sale  of 
certain  real  estate  of  hers  in  their  hands.  ...  At  the  hearing,  before 
Gray,  J.,  it  appeared  that  in  February,  1869,  the  plaintiff  then  being 
married  to  Thomas  Earle,  and  having  several  children  by  him,  was 
seised  in  fee  in  her  own  right  of  land  in  Worcester,  which  had  been 
devised  to  her  by  her  father ;  and  that  she  and  her  husband,  being 
desirous  of  selling  this  land,  signed  a  memorandum,  dated  February 
23,  1869,  which,  after  reciting  the  ownership  of  the  land  and  the  desire 
of  the  parties  to  sell  it,  continued  thus :  "It  is  understood  and  agreed 
that  said  real  estate  shall  be  advertised  and  sold,  some  time  during  the 
month  of  March  next, — said  parties  joining  the  conveyance  thereof; 
and  the  proceeds  thereof,  after  paying  the  expenses  of  said  sale,  and 
discharging  any  incumbrances  thereon,  shall  be  placed  in  the  hands 
of  Edward  Earle  and  William  W.  Rice,  in  trust.  .  .  .  And  it  is  under- 
stood that  a  deed  of  trust  shall  be  prepared  in  proper  form  to  carry  out 
the  understanding  and  intention  above  summarily  expressed,  with  such 
proper  details  and  provisions  as  shall  be  necessary  to  make  the  same 
effectual." 

William  W.  Rice  testified  that  Thomas  Earle  asked  him  to  draw 
this  memorandum ;  that  he  replied  that  he  did  not  believe  such  an 
agreement  would  be  legally  binding  between  him  and  his  wife ;  that 
Thomas  Earle  then  said  "I  do  not  suppose  the  writing  will  be  binding 
between  us,  but  I  want  it  made,  and  I  will  sign  it,  and  she  can  sign 
it  if  she  will ;  we  shall  then  be  morally  bound  by  it,  the  friends  of 
both  can  see  what  I  am  willing  to  do,  and  if  either  party  refuse  to 
be  bound,  it  will  be  known  who  is  to  blame" ;  that  the  witness  drew 
the  paper  and  Thomas  Earle  signed  it ;  and  that  the  witness  told  the 
plaintiff  what  Thomas  Earle  said.  The  plaintiff  testified  that  Rice 
brought  her  the  paper,  and  told  her  very  plainly  that  it  would  not  be 
legally  binding,  and  that  her  husband  knew  it  was  not  legally  binding, 
but  considered  it  as  morally  binding,  and  as  showing  that  he  was  will- 
ing to  do  what  was  right  in  the  matter;  that  she  showed  it  to  her 
counsel,  and  told  him  that  her  husband  was  aware  that  it  was  not  legally 
binding;  that  her  counsel  told  her  that  she  was  not  legally  bound 
by  it,  but  would  of  course  feel  morally  bound  to  carry  out  its  provisions, 
and  that  it  was  right  for  her  to  sign  it ;  and  that  she  signed  it.     The 


556  PAROL   EVIDENCE   RULE.  No.  527. 

administrator  and  the  guardian  ad  litem  objected  to  the  admission  of 
this  testimony.  .  .  . 

Gray,  J. :  "  ....  As  to  the  memorandum  of  February  2^,  1869, 
the  evidence  is  full  and  conclusive  that  it  was  signed  by  the  husband 
with  the  understanding  that  it  would  not  be  legally  binding,  or  anything 
more  than  a  moral  or  honorary  obligation,  upon  either  party;  and  by 
the  wife,  after  being  informed  that  such  was  the  husband's  under- 
standing of  its  effect,  and  after  being  advised  by  her  counsel  that  it 
would  not  legally  bind  her.  In  short  both  parties  signed  it  with  the 
understanding  that  they  were  not  bound  thereby,  except  so  far  as  they 
might  feel  themselves  morally  obliged  to  carry  out  the  intention  therein 
expressed.  Evidence  of  this  character,  though  not  competent  to  con- 
trol the  interpretation  of  the  contract,  is  clearly  admissible  to  show  that 
the  contract  should  be  set  aside,  or  treated  as  of  no  effect,  in  equity. 
...  It  follows  that  the  wife  has  done  nothing  to  affect  her  rights  in 
the  land  devised  to  her  by  her  father,  or  to  confer  any  rights  therein 
upon  her  husband  and  children;  and  that  the  proceeds  of  the  sale  of 
the  land,  in  the  hands  of  the  trustees,  belong  to  her  as  fully  as  the  land 
did  before  the  sale."^ 


THOROUGHGOOD'S  CASE    (1601). 
p  Co.  Rep.  /J/. 

"If  A  makes  a  writing  to  B  and  seals  it,  and  delivers  it  to  B  as  an 
escrow,  to  take  effect  as  his  deed  when  certain  conditions  are  per- 
formed, it  has  been  adjudged  to  be  immediately  his  deed,  for 
"^^  the  law  respects  the  delivery  to  the  party  himself,  and  rejects 
the  words  which  will  make  the  express  delivery  to  the  party  upon  the 
matter  no  delivery.  .  .  .  And  therewith  agrees  the  report  of  19  H.  8.  8. 
a.  and  takes  the  difference  when  it  is  so  delivered  to  the  party  himself, 
and  when  to  a  stranger,  as  it  was  there  agreed.  A  writing  may  take 
effect  by  actual  delivery  to  the  party  himself  without  any  words :  And 
as  a  writing  may  take  effect  by  actual  delivery  without  words,  so  it  may 
take  effect  by  words  without  actual  delivery:  As  if  a  writing  is  sealed, 
and  it  lies  in  a  window,  or  upon  a  table,  and  the  obligor  saith  to  the 
obligee,  see  there's  the  writing,  take  it  as  my  deed  and  he  takes  it 
accordingly,  it  is  a  good  delivery  in  law."^ 


XENOS  V.  WICKHAM    (1866). 
L.  R.  2  H.  L.  2p6. 

The    Appellants    are    shipowners,   carrying    on   business    under   the 

name  of  the  Greek  and  Oriental   Steam  Navigation  Company,  and  as 

such  were  the  owners  of  the  ship  Leonidas.     The   Respondent 

^"^      is   the    chairman   and   representative   of   the   Victoria    Fire   and 

Marine    Insurance   Company.     The   declaration    alleged,    in    the    usual 

I — Compare  the  authorities  cited  in  W.,  2 — Compare   the  authorities  cited  in  W., 

§    2406.  §    2408. 


No.  529.  A.   CREATION  OF  LEGAL  ACTS.  557 

form,  that  the  Plaintiffs  caused  their  vessel  to  be  insured  by  this 
company  for  a  space  of  twelve  months,  from  the  25th  of  April,  1861, 
to  the  24th  of  April,  1862,  on  a  policy  valued  at  £1000,  upon  a  ship 
valued  at  £13,000,  and  the  loss  was  alleged  to  have  occurred  by  perils 
of  the  sea.  ...  It  appeared  that  on  the  25th  of  April,  1861,  the  Plain- 
tiffs employed  Mr.  Lascaridi,  an  insurance  broker,  to  effect  for  them 
a  policy  on  the  ship  Leonidas  for  £2000,  at  £8  8^.  per  cent.,  from  the 
25th  of  April  to  the  25th  of  October.  ...  In  accordance  with  the  usual 
practice,  Lascaridi  prepared  for  the  Respondent's  company  a  slip  em- 
bodying the  terms  of  the  proposed  insurance,  and  got  it  initialed  by 
Mr.  E.  J.  Sprague,  a  clerk  of  the  company,  for  the  sum  of  £2000.  This 
was  left  at  the  office  of  the  company  in  order  that  the  policy  might  be 
made  out.  Before  the  policy  was  made  out,  the  Plaintiffs  sent  to  Las- 
caridi a  letter,  dated  29th  of  April,  1861,  desiring  him  to  "cancel  Leoni- 
das insurance,  and  insure  the  same  for  all  the  year  and  for  all  seas 
at  £10  loj.  per  cent."  On  the  30th  of  April  Lascaridi  called  at  the 
Respondent's  office,  and  stated  that  he  did  not  wish  the  policy  already 
mentioned  to  proceed,  but  desired  to  effect  another.  The  slip  for  the 
insurance  for  £2000  for  six  months  was  then  destroyed,  and  another 
slip  was  prepared  by  him,  and  initialed  by  the  Respondent's  clerk, 
"E.  J.  S.,"  on  the  Leonidas  for  £1000  for  twelve  months,  from  the  25th 
of  April,  1861,  on  "hull,  stores,  and  machinery,  valued  at  £13,000." 
On  the  1st  of  May  Lascaridi  sent  to  the  Plaintiffs  an  account  debiting 
them  with  the  sum  of  £338,  as  payable  by  them  in  respect  of  insurances 
on  the  Leonidas,  and  drew  on  them,  as  of  that  date,  for  that  sum  at 
three  months.  They  accepted  the  bill,  and  when  they  did  so  Lascaridi 
told  them  that  the  policy  would  be  ready  in  a  day  or  two.  This  bill 
was  paid  at  maturity.  In  the  course  of  a  few  days  afterwards  a  policy 
in  the  usual  form  of  the  company  was  filled  up  from  the  slip,  and  was 
dated  the  ist  of  May,  1861. 

The  custom,  as  between  insurance  companies  and  insurance  brokers, 
is  for  the  companies  to  give  credit  to  the  brokers  for  the  premiums, 
debiting  them  in  account  with  the  amount  of  such  premiums,  and  when 
insurances  are  effected  (as  this  was)  foi;  cash,  or  on  cash  account, 
all  premiums  for  insurances  effected  during  each  month  are  payable 
on  the  8th  of  the  succeeding  month.  Just  before  the  expiration  of  this 
credit  a  debit  note  is  sent  to  the  broker,  with  a  statement  of  the  amount 
of  the  premiums  due,  less  a  discount  and  a  brokerage  at  15  per  cent. 
On  the  8th  of  June  a  debit  note  was  sent  from  the  Respondent's  office 
to  that  of  Lascaridi.  On  its  being  presented,  Lascaridi's  clerk  said  that 
no  premium  was  due,  and,  upon  a  second  messenger  being  sent  with 
the  policy,  which  was  expressed  to  be  duly  "signed,  sealed,  and  de- 
livered," and  the  debit  note,  the  clerk  repeated  the  statement  and  said 
that  the  policy  ought  not  to  have  gone  forward.  In  the  course  of  the 
day  one  of  the  clerks  of  Lascaridi  called  at  the  office  of  the  comnany. 
and  said  that  the  policy  had  been  put  forward  in  error,  and  requested 
that  it  should  be  cancelled.     A  memorandum  of  cancellation  was  there- 


558 


PAROL   EVIDENCE   RULE. 


No.  529, 


upon  indorsed  on  the  policy  in  these  terms:  "Settled  a  return  of  the 
whole  premium  on  the  within  policy,  and  cancelled  this  insurance,  no 
risk  attaching  thereto."  This  memorandum  was  signed  by  two  directors, 
witnessed,  and  registered  in  the  regular  way.  'The  debit  against  Las- 
caridi  for  the  premium  was  cancelled,  but  he  was  charged  with  the 
stamp,  and  the  policy  was  handed  to  his  clerk,  with  the  memorandum 
of  cancellation  thereon,  that  he  might,  if  he  could,  obtain  from  the 
stamp  office  a  return  of  the  stamp  duty.  On  the  morning  of  the  2nd 
of  September,  1861,  Lascaridi's  clerk  called  at  the  office  of  the  company 
with  the  policy,  said  that  the  cancellation  had  been  made  by  mistake, 
and  wished  the  policy  to  be  reinstated.  He  was  informed  that  if  the 
ship  was  safe,  and  not  in  the  Baltic,  there  would  be  no  objection,  and 
he  was  requested  to  call  again  for  an  answer.  At  twenty  minutes  past 
eight  o'clock  on  the  morning  of  that  day,  intelligence,  by  telegram,  had 
been  received  at  Lloyd's,  stating  that  the  Leonidas  was  stranded  on  the 
Nervo,  but  this  intelligence  was  not  known  to  the  Respondent  till 
three  o'clock  in  the  afternoon  of  that  day.  The  reinstatement  of  the 
policy  was  then  refused.  It  was  admitted  that  the  Appellants  had  not, 
in  fact,  authorized  the  cancellation  of  the  policy,  nor  did  they  ever  re- 
ceive back  from  Lascaridi  any  part  of  the  premium,  or  any  credit  for 
the  same.  The  Lord  Chief  Justice,  on  these  facts,  directed  a  verdict 
for  the  Defendant,  but  reserved  leave  to  the  Plaintiffs  to  move  to  enter 
a  verdict  for  them  if  the  Court  should  be  of  opinion  that  the  policy  was 
binding  on  the  company,  and  had  been  cancelled  without  authority. 

Sir  George  Honyman,  Q.  C,  and  Mr.  Watkin  Williams,  for  the  Ap- 
pellants: "The  judgment  in  the  Court  below  was,  that  there  never 
was  a  complete  and  binding  contract  between  these  parties.  That  propo- 
sition cannot  be  sustained.  The  policy  was  treated,  except  by  Lord 
Chief  Baron  Pollock,  as  a  common  law  deed,  and  it  was  supposed  to 
require  actual  delivery  to  make  it  effectual.  Formal  delivery  to  the 
Appellants,  or  even  to  a  particular  person  on  their  behalf,  is  not  essen- 
tial for  its  validity." 

Mr.  Bovill,  Q.C.,  and  Mr.  Archibald,  for  the  defendant:  "There was 
no  policy  here  under  the  hands  and  seals  of  the  company  at  the  time 
of  the  loss.  ...  A  memorandum  of  cancellation  was  made  on  the  pol- 
icy, and  though  the  policy  was  left  with  the  broker,  it  was  left  not  as 
a  delivery  of  it,  as  a  policy,  to  him,  as  the  broker  for  the  assured,  but 
merely  to  enable  him  to  get  a  return  of  the  stamp  duty.  As  to  the 
delivery  of  a  deed,  it  is  said  in  the  Touchstone:  'The  delivery  of  a  deed 
as  an  escrow  is  said  to  be  where  one  doth  make  and  seal  a  deed  and 
deliver  it  unto  a  stranger  until  certain  conditions  be  performed,  and 
then  to  be  delivered  to  him  to  whom  the  deed  is  made  to  take  effect  as 
his  deed.'  Here  it  was  only  proposed  to  be  delivered,  and  on  that  pro- 
posal it  was  repudiated.  In  truth,  it  never  was  delivered,  and  has  never 
been  in  the  possession  of  the  Appellants  as  a  deed  accepted  by  them." 

The  following  question  was  put  to  the  Judges :  "Whether,  on  the 
facts  stated  in  the  special  case,  the  Victoria  Fire  and  Marine  Insurance 


No.  529.  A.      CREATION  OF  LEGAL  ACTS.  559 

Company  was,  when  the  ship  Leonidas  was  lost,  Hable  as  insurer  to 
the  Plaintiffs  on  the  policy,  or  alleged  policy,  in  the  pleadings  men- 
tioned? It  is  to  be  assumed  that  the  ship  Leonidas  was  totally  lost  on 
the  I  St  of  September^  1861." 

Mr.  Justice  Blackburn  :..."!  should  wish  to  call  your  Lord- 
ship's attention  to  what  I  think  are  the  real  points  in  controversy. 
They  are,  I  think,  two;  one  of  fact,  the  other  of  law. 

"The  question  of  fact  is,  I  think,  this:  Was  the  policy  really  in  fact 
intended  by  both  sides  to  be  finally  executed  and  binding  from  the  time 
when  the  directors  of  the  Defendant's  company  affixed  their  seals  to  it, 
and  left  it  in  their  office;  or  was  it,  in  fact,  intended  that  the  assured 
or  their  brokers  should  exercise  a  subsequent  discretion  as  to  whether 
they  would  accept  it  or  not.  If  I  thought  that  the  parties  did  not  in 
fact  intend  it  to  be  then  finally  binding,  I  do  not  think  there  would  be 
any  magic  in  the  law  to  make  it  binding  contrary  to  their  intention ; 
but  I  submit  to  your  Lordships  that  the  statements  in  the  case  as  to 
what  is  stated  to  be  'always'  the  practice,  and  the  statements  there  as 
to  what  was  done  in  this  particular  case,  shew  that  the  intention  of 
both  parties  was,  that  the  policy,  when  drawn  up  by  the  company  in 
conformity  with  the  instructions  in  the  advice  slip  sent  in  by  the  broker, 
should  be  finally  binding  as  soon  as  executed  by  the  officers  of  the  com- 
pany. It  was  not  intended  by  either  side  that  anything  more  should 
be  done,  but  that  the  policy  from  that  time  should  be  binding,  and 
should  lie  in  the  company's  office  as  the  property  of  the  assured  till 
sent  for  by  them,  and  then  be  handed  over  to  their  messenger.  .  .  . 

"Then,  assuming  that  the  intention  really  was  that  the  policy  should 
be  binding  as  soon  as  executed,  and  should  be  kept  by  the  company  as 
a  bailee  for  the  assured,  the  question  of  law  arises,  whether  the  policy 
could  in  law  be  operative  until  the  company  parted  with  the  physical 
possession  of  the  deed.  I  can,  on  this  part  of  the  case,  do  little  more 
than  state  to  your  Lordships  my  opinion,  that  no  particular  technical 
form  of  words  or  acts  is  necessary  to  render  an  instrument  the  deed  of 
the  party  sealing  it.  The  mere  affixing  the  seal  does  not  render  it  a 
deed ;  but  as  soon  as  there  are  acts  or  words  sufficient  to  shew  that  it 
is  intended  by  the  party  to  be  executed  as  his  deed  presently  binding 
on  him,  it  is  sufficient.  The  most  apt  and  expressive  mode  of  indi- 
cating such  an  intention  is  to  hand  it  over,  saying:  'I  deliver  this  as 
my  deed ;'  but  any  other  words  or  acts  that  sufficiently  shew  that  it  was 
intended  to  be  finally  executed  will  do  as  well.  And  it  is  clear  nn  the 
authorities,  as  well  as  the  reason  of  the  thing,  that  the  deed  is  binding 
on  the  obligor  before  it  comes  into  the  custody  of  the  obligee,  nay.  be- 
fore he  even  knows  of  it;  though,  of  course,  if  he  has  not  previously 
assented  to  the  making  of  the  deed,  the  obligee  may  refuse  it.  ...  I 
cannot  perceive  how  it  can  be  said  that  the  delivery  of  the  policy  to 
the  clerks  of  the  Defendant,  to  keep  till  the  assured  sent  for  it.  and 
then  to  hand  it  to  their  messenger,  was  not  a  delivery  to  the  Defend- 
ant to  the  use  of  the  assured.  ...  No  authority,  I  think,  has  been  cited 


560  PAROL   EVIDENCE   RULE.  No.  529. 

which  supports  the  position  that  there  is  a  technical  necessity  for  some 
one  who  is  agent  of  the  assured  taking  corporal  possession  of  a  policy 
under  seal  before  it  can  be  binding,  though  intended  by  both  parties  to 
be  so.  I  think  it  would  be  very  inconvenient,  and  would  work  great 
injustice,  if  such  were  the  law." 

Judgment  reversed;  and  judgment  given  for  the  Plaintiff. 


HUDSON  V.  REVETT  (1829). 
5   Bing.   368. 

This  was  an  issue  directed  by  the  Court  of  Common  Pleas,  to  try 
whether  certain  deeds  of  lease  and  release,  and  an  accompanying  deed 
of  trust,  were  the  deeds  of  the  defendant,  and  if  so,  whether  they 
"**"      had  been  obtained  by  fraud,  covin,  or  misrepresentation. 

The  lease  and  release  bore  date  the  25th  and  26th  of  November, 
1825,  respectively;  the  deed  of  trust  the  latter  day;  and  the  object  of 
the  deeds  was  to  effect  a  conveyance  of  Revett's  property  to  Hudson,  in 
trust,  to  raise  money  by  sale  of  it  for  the  payment  of  Revett's  debts, 
with  a  trust,  as  to  any  residue,  in  favor  of  Revett.  At  the  trial,  before 
HoLROYDj  J.,  at  Suffolk  Summer  assizes,  Mr.  Brown,  the  attorney 
who  prepared  the  deeds,  and  was  also  a  party  to  the  deed  of  trust,  stated, 
that  on  Monday  the  28th  November,  1825,  the  defendant  being  then  a 
prisoner  in  the  King's  Bench  prison,  he,  Brown,  on  the  part  of  the 
plaintiff  and  other  creditors,  and  acting,  as  he  conceived,  for  all  parties, 
went,  accompanied  by  Columbine,  the  attesting  witness,  to  the  defend- 
ant in  the  prison,  for  the  purpose  of  procuring  the  execution  of  the 
deeds.  That  they  corresponded  exactly  with  drafts  which  had  before 
been  assented  to  and  signed  by  the  defendant;  that  blanks  were  left  for 
the  amounts  of  the  debts  of  various  creditors,  which  were  then  filled  up, 
with  the  exception  of  the  blank  for  tTie  debt  of  one  Mills,  a  creditor; 
that  Mills,  who  was  present,  claimed  16,000/.  odd;  but  that  the  defend- 
and  showed  an  account,  reducing  Mills's  debt  to  14,858/.  8s.  Sd.,  and  said 
he  had  vouchers  by  which  he  could  confirm  the  account.  The  account 
was  admitted,  subject  to  the  production  of  these  vouchers;  and  it  was 
agreed  that  the  blank  for  Mills's  debt  should  be  filled  up  when  they  were 
produced.  The  defendant  and  Mills  then  executed  the  deed,  leaving 
the  blank  to  be  filled  up  as  above  mentioned.  This  statement  was  con- 
firmed by  the  attesting  witness,  the  only  other  person  present.  The 
next  day  Brown  and  Mills  attended  the  defendant  again;  but  Colum- 
bine was  not  present.  The  defendant  produced  the  vouchers  in  ques- 
tion; the  balance  was  struck;  Brown  filled  up  the  blanks  with  the  sum 
of  14,858/.  Ss.  8d.,  and  then  went  away,  taking  with  him  the  deeds  for 
the  purpose  of  procuring  their  execution  by  other  parties.  The  instru- 
ment at  that  time  had  a  deed-stamp,  (not  ad  valorem,)  and  no  new 
stamp  was  add^d.  The  defendant  left  the  prison  shortly  afterwards, 
and  the  deeds  were  executed  in  his  presence  by  his  wife,    (who  also 


No.  530.  A.   CREATION  OF  LEGAL  ACTS.  561 

joined  in  a  fine  to  enure  to  the  uses  of  the  trust-deed,)  under  his  sanction, 
when  he  was  at  Hberty. 

No  evidence  was  offered  on  the  part  of  the  defendant;  but  the  fol- 
lowing passage  in  Bull.  N.  P.  p.  267,  was  relied  on:  "If  there  be  blanks 
left  in  an  obligation  in  places  material,  and  filled  up  afterwards  by  the 
assent  of  parties,  yet  is  the  obligation  void,  for  it  is  not  the  same  con- 
tract that  was  sealed  and  delivered — as  if  a  bond  were  made  to  C.  with  a 
blank  left  after  for  his  Christian  name  and  for  his  addition,  which  is  aft- 
erwards filled  up."  HoLROYD,  J.,  told  the  jury  it  did  not  appear  in  the 
passage  cited  that  the  alteration  was  made  in  the  presence  of  the  party, 
but  that,  if  in  such  a  case  there  was  that  which  amounted  to  a  re- 
delivery, and  shov/ed  that  the  party  meant  the  deed  should  be  acted  on 
in  its  altered  state,  the  alteration  being  made  in  his  presence  would 
amount  to  a  redelivery,  and  the  deed  would  be  his  in  its  altered  state. 
The  jury  found  that  the  deeds  were  the  deeds  of  the  defendant,  and 
that  the  execution  of  them  had  not  been  obtained  by  any  fraud,  covin  or 
misrepresentation.  Wilde,  Serjt.,  moved  for  a  new  trial  on  the  ground 
that  the  deed  was  void,  having  been  altered  in  a  material  particular 
after  its  execution,  without  any  redelivery.  A  rule  nisi  having  been 
granted, 

Storks  and  Russell,  Serjts.,  showed  cause :  .  .  .  "It  was  settled  be- 
tween the  parties  that  the  deed  should  be  executed,  subject  to  the  blanks 
being  filled  up,  when  the  amount  of  debt  should  have  been  ascertained 
and  agreed  upon.  They  were  filled  up,  therefore,  according  to  the  in- 
tention of  the  parties,  and  there  was  no  alteration  of  the  deed,  but  a 
completion  of  it,  according  to  the  intentions  of  the  parties.  Under  these 
circumstances  it  may  be  contended,  first,  that  the  deed  remained  the 
deed  of  the  parties  (without  redelivery)  notwithstanding  the  insertion. 
...  A  deed  may  be  in  the  nature  of  an  escrow  only,  from  circumstances 
and  the  nature  of  the  transaction,  without  the  formal  and  apt  words 
spoken  of  in  Shepherd's  Touchstone,  50  and  60;  therefore,  where  a  deed 
is  to  be  executed  by  several  parties,  and  if  any  of  them  refuse,  the 
deed  will  be  inoperative,  a  party  who  executes  first  must  be  taken  to 
execute  and  deliver  it  as  his  deed  conditionally  in  case  the  others  also 
execute:  so  if  the  insertion  of  a  sum  be  necessary  to  give  the  instrument 
effect,  a  party  who  executes  before  such  sum  has  been  ascertained  must 
be  understood  as  executing  conditionally,  and  to  give  the  deed  effect 
upon  such  sum  being  ascertained  and  inserted :  until  insertion,  it  is 
therefore  an  escrow ;  upon  insertion,  and  not  till  then,  it  becomes  the 
deed  of  the  party  who  executed,  by  relation  to  the  time  of  the  execu- 
tion. The  concurrence  of  the  agent  of  the  obligors  was  of  equal  force 
with  the  concurrence  of  the  obligors  themselves.  And  this  will  apply 
to  the  objection  of  the  insertion  of  the  sum  not  having  been  made  in 
the  presence  of  Revett  (if  that  were  so)  because  Brown  was  authorized 
to  make  the  insertion.  .  .  .  The  deed  in  question  therefore  is  good,  and 
the  deed  of  Revett,  without  any  re-execution  or  redelivery.  But  if  not 
good  without  a  redelivery,  it  would  be  clearly  so  if  such  redelivery,  or 


562  PAROL   EVIDENCE   RULE.  No.  530, 

what  was  tantamount  to  it,  took  place.  .  .  .  Then,  has  there  been  a 
second  delivery  in  this  case?  Goodright  dem.  Carter  v.  Straphan  es- 
tablishes this  point,  viz.,  that  circumstances  alone  may  be  equivalent  to 
a  redelivery.  Lord  Mansfield,  after  citing  two  cases  from  the  year- 
books, which  confirm  the  proposition,  that  it  is  not  necessary  for  a  deed 
to  be  re-executed  or  reattested,  but  redelivered  only,  says,  'Now,  de- 
livery is  an  act  in  pais  only.  The  question,  then,  is,  Whether  the  law 
has  laid  down  any  precise  form  in  which  delivery  must  be  made,  or 
whether  circumstances  may  not  be  equivalent  to  it  without  actual  de- 
livery? .  .  .  No  manual  tradition  or  handing  over  of  the  deed  to  the 
grantees  is  necessary." 

Wilde:  .  .  .  "The  deed  was  perfect  when  it  was  first  executed,  and,^ 
therefor,  re-excution,  which  implies  that  the  deed  is  previously  imper- 
fect, could  not  have  any  operation.  It  was  signed,  sealed,  and  deliv- 
ered: the  estate  had  passed  out  of  the  relessor,  and  had  vested  in  the 
relessee,  and  the  attestation  was  such  as  to  show  the  deed  to  be  a  per- 
fect instrument.  According  to  Perkins,  s.  154  (a  passage  cited  by  Lord 
Mansfield),  Tf  the  first  delivery  take  any  efifect,  the  second  delivery 
is  void.'  As  to  the  instrument's  operating  as  an  escrow  till  the  blanks 
were  filled  up,  Com.  Dig.  Fait.  (A.  3),  Shep.  Touch.  58,  and  4  Cruise, 
36,  are  express  authorities  to  show,  that  if  a  deed  be  delivered  as  an 
escrow,  it  must  be  so  delivered  in  terms,  and  the  fact  must  be  noticed 
in  the  attestation.  .  .  .  Secondly,  the  rule  of  law  is  clear  and  undis- 
puted, that  any  alteration  of  a  deed  in  a  material  point  by  insertions, 
erasures,  or  otherwise,  will  avoid  the  deed,  even  though  the  alteration 
may  have  been  innocently  or  laudably  intended." 

Best,  C.  J. :  "This  was  an  issue  which  the  Court  thought  it  right  to 
direct,  for  the  purpose  of  ascertaining  whether  these  deeds  had  been 
properly  executed,  or  were  obtained  by  fraud.  The  jury  have  found 
that  all  the  deeds  were  properly  executed,  and  they  have  negatived  the 
fraud.  An  application  has  been  since  made  to  grant  a  new  trial  on 
several  grounds.  .  .  .  The  third  objection  is,  that  the  trust  deed  was  a 
complete  deed  at  the  time  the  witness  attested  its  execution  in  the 
King's  Bench  prison,  and  that  the  learned  Judge  ought  not  to  have  left 
it  to  the  jury  to  presume  another  delivery;  that  if  it  was  a  perfectly 
executed  deed,  the  alterations  made  subsequently  to  its  execution,  though 
with  the  assent  of  all  the  parties  render  that  deed  a  nullity;  and  that  if 
the  trust  deed  be  a  nullity,  all  the  other  deeds  are  useless,  because  they 
refer  to  this,  and  cannot  stand  as  a  complete  conveyance  without  it. 

"I  am  disposed  to  agree,  though  it  is  not  necessary  to  decide  that 
point,  that  if  the  trust  deed  is  to  fall,  all  the  deeds  will  fall.  But  I  am 
of  opinion  that  all  the  deeds  must  stand.  .  .  .  This  brings  us,  therefore, 
to  the  great  questions  in  this  case.  They  have  been  divided  into  two. 
It  has  been  first  insisted  that  there  was  no  perfect  execution  of  the 
deed  until  the  sum  of  14,858/.  was  written  in  it ;  and  if  there  was  not  a 
perfect  execution  of  the  deed  up  to  that  time,  then  it  was  competent  for 
my  brother  Holroyd  to  refer  it  to  the  jury,  to  consider  whether  they 


KO.  530.  A.   CREATION  OF  LEGAL  ACTS.  563 

would  not  presume  an  execution  of  the  deed  after  all  the  sums  were 
written  in,  and  it  was  rendered  a  perfect  deed.  I  am  of  opinion  that 
this  is  a  correct  view  of  the  case. 

".  .  ,  That  brings  us  to  the  question,  Was  there  any  perfect  delivery 
of  this  deed  antecedent  to  the  period  when  these  sums  were  written  in? 
If  one  looks  at  the  deed,  and  particularly  at  that  part  of  the  deed  which 
my  learned  brother  has  referred  us  to,  it  is  quite  impossible  that  the 
deed  could  be  considered  as  having  any  operation  till  these  sums  were 
actually  written  in,  because,  what  was  the  object  of  the  deed?  The 
object  of  all  the  deed  was  to  convey  the  estates  to  trustees,  that  those 
estates  might  be  sold,  and  that  the  proceeds  of  those  estates  might  be 
applied  to  pay  certain  creditors'  debts,  which  were  to  be  ascertained.  In 
the  preparation  of  the  draft  of  this  deed,  blanks  were  left  for  the  in- 
sertion of  sums  when  those  sums  should  be  ascertained.  When  these 
parties  met  in  the  King's  Bench  prison,  can  it  be  said  that  that  was  a 
perfect  execution  of  the  deeds,  when  the  sums  that  were  due  to  these 
creditors  remained  unascertained?  The  operative  part  of  the  deed  re- 
fers to  the  payment  of  particular  sums,  which,  as  then,  were  unascer- 
tained. It  is  quite  clear,  if  nothing  had  passed  at  this  time,  that  the 
deed  could  not  be  an  operative  deed  until  those  sums  were  introduced, 
because  the  g^eat  object  of  the  deed  was  the  payment  of  those  sums. 
I  think,  therefore,  taking  it  in  this  point  of  view,  that  this  was  not  to 
be  considered  as  an  execution  of  the  deed, — that  this  was  not  a  complete 
deed, — and  that  therefore  the  case  falls  within  the  authority  of  the 
case  in  Cowper,  and  not  within  the  law  which  is  extracted  from  Per- 
kms. 

"This  deed,  as  I  have  stated,  undoubtedly  was  not  to  be  considered 
as  complete  until  the  sums  were  introduced.  But  it  has  been  said,  if 
it  was  delivered  to  the  party,  it  could  not  be  delivered  as  an  escrow, 
unless  so  delivered,  in  terms.  Perhaps,  technically  speaking,  this  is 
so ;  because  a  deed  delivered  to  a  party  is  not  an  escrow :  a  deed  deliv- 
ered to  a  stranger  is  an  escrow  till  something  is  done :  but  though  it  is 
delivered  to  a  party,  there  are  cases,  and  in  the  same  page,  to  which 
my  learned  brother  referred,  to  show  that  it  is  not  a  perfect  and  com- 
plete deed ;  Com.  Dig.  tit.  Faits  (A  3)  :  'So  if  it  be  at  once  delivered  as 
his  deed,  it  is  sufficient,  though  he  afterwards  explained  his  intent 
otherwise,  as  if  an  obligation  be  made  to  A.  and  delivered  to  A.  him- 
self as  an  escrow,  to  be  his  deed  on  the  performance  of  a  condition, 
this  is  an  absolute  delivery,  and  the  subsequent  words  are  void  and 
repugnant.'  The  authorities  referred  to  in  the  text,  in  support  of  this 
position,  are  at  least  conflicting;  but  in  the  next  division  (A  4)  it  ap- 
pears that  this  position  about  delivery  as  an  escrow  is  merely  a  tech- 
nical subtilty;  for  the  learned  writer  says,  'If  it  be  delivered  to  the 
party  as  an  escrow,  to  be  his  deed  on  the  performance  of  a  condition, 
it  is  not  his  deed  till  the  condition  is  performed,  though  the  party  hap- 
pens to  have  it  before  the  condition  is  performed.'  .  .  . 

"Let  us  see  how  that  doctrine  applies  to  the  present  case.     The  par- 


564  PAROL   EVIDENCE   RULE.  No.  530. 

ties  meet;  something  is  to  be  done  before  a  complete  deed  can  be  made; 
the  sums  are  to  be  ascertained  which  the  different  creditors  are  to  be 
paid.  They  cannot  be  ascertained  that  day;  it  is  ascertained  at  a  sub- 
sequent day,  and  they  are  written  in.  Take  it,  if  you  please,  that  this 
is  a  deHvery  of  the  deed  as  a  deed;  it  is  not  a  delivery  of  the  deed  in 
the  language  of  Lord  Coke,  upon  condition ;  that  is,  upon  condition 
that  something  is  to  be  done,  which  at  that  time  was  not  done?  That 
something  is  afterwards  done:  then,  and  not  till  then,  it  becomes  a 
perfect  deed.  It  seems  to  me,  therefore,  without  touching  any  of  the 
cases  that  have  ben  decided  on  the  operation  of  deeds,  we  may  say  that 
this  deed  was  not  a  complete  deed,  executed  so  as  to  have  efifect  in 
the  hands  of  these  parties  until  the  sums  were  written  in. 

"I  shall  not,  after  what  I  have  said,  travel  through  the  different 
•cases  that  have  been  cited  with  respect  to  the  alteration  of  deeds ;  but  I 
beg  not  to  be  taken  as  deciding,  that  if  a  deed  be  altered  with  the  con- 
sent of  all  the  parties,  after  it  is  executed,  it  is  not  to  be  considered  as 
a  good  deed.  I  think,  if  we  were  driven  to  examine  that  question,  it 
would  be  found  that,  in  these  times,  whatever  might  have  been  thought 
formerly,  if  all  the  parties  assent  to  the  alteration  of  a  deed,  it  will,  in 
its  altered  shape,  be  a  good  deed;  but  I  do  not  decide  this  case  on  that 
ground.  I  decide  it  on  this,  that  it  either  was  no  deed  at  all,  until  the 
sums  were  written  in,  and  that  then  the  jury  were  warranted  in  pre- 
suming a  delivery  to  make  it  a  deed;  or,  if  it  were  a  deed,  it  was  deliv- 
ered only  to  have  operation  from  the  time  that  those  sums  were  writ- 
ten in,  which  were  to  give  it  all  its  effect.  .  .  .  On  these  grounds  I  am 
of  opinion  that  the  rule  should  be  discharged." 


PRICE  V.  HUDSON  (1888). 
125  III.  284,  287,  17  N.  E.  817. 

Shope,  J. :  "This  was  an  action  of  ejectment,  by  John  N.  Price, 
against  Phoebe  Hudson  and  William  D.  Hudson,  to  recover  the  north- 
east quarter  of  the  north-west  quarter  of  section  3,  township  3 
"**^  north,  range  9,  east,  in  Richland  county.  The  general  issue  was 
filed,  and  a  trial  by  jury  resulted  in  a  verdict  of  not  guilty.  A  motion 
for  new  trial  interposed  by  plaintiff  was  overruled,  and  judgment  en- 
tered on  the  verdict,  from  which  the  plaintiff  below  prosecutes  this 
appeal.  The  record  shows  that  the  tract  of  land  in  controversy  was 
patented  by  the  government  of  the  United  States  to  the  defendant 
William  D.  Hudson,  prior  to  the  year  1863 ;  that  in  that  year  said  Wil- 
liam D.,  and  his  wife  and  co-defendant,  Phcebe  Hudson,  were  occupying 
the  tract  of  land,  and  the  dwelling  house  thereon,  as  a  homestead,  and 
have  ever  since  continued  to  so  occupy  it.  It  appears  that  said  Wil- 
liam, being  about  to  enlist  in  the  army  of  the  United  States,  in  the  year 
1863  made  and  acknowledged  a  deed  for  said  land,  in  the  ustial  form, 
in  which  his  wife  was  grantee;  that  he  took  the  deed  and  placed  it  in 


No.  531.  A.   CREATION  OF  LEGAL  ACTS.  565 

a  trunk  in  their  dwelling  house,  telling  his  wife  that  if  he  got  killed  in 
the  army  she  should  take  the  deed  and  have  it  recorded.  The  grantor 
was  not  killed  in  the  war,  but  returned  in  1865,  and  still  survives.  The 
plaintiff  claims  title  through  said  deed  of  1863,  from  said  William  D. 
to  Phoebe  Hudson, 

"...  The  first  question  presented  is,  did  the  title  pass  to  Phoebe 
Hudson  by  the  deed  from  her  husband?  Waiving  the  question  as  to 
the  right  of  the  husband  to  thus  convey  the  homestead,  to  render  the 
deed  operative  as  a  conveyance  an  unconditional  delivery  was  requisite ; 
or  if  the  delivery  was  conditional,  or  to  take  effect  upon  the  happening 
of  some  event  in  the  future,  it  must  appear  that  the  condition  has  been 
performed,  or  that  the  event  has  happened.  It  is  not  essential,  however, 
to  a  delivery,  that  the  deed  should  pass  from  the  hand  of  the  grantor 
to  the  grantee.  Any  disposition  made  of  the  deed  by  the  grantor,  with 
the  intention  thereby  to  make  delivery  of  it,  so  that  it  shall  become 
presently  effective  as  a  conveyance  of  a  title,  will,  if  accepted  by  the 
grantee,  constitute  a  sufficient  delivery.  The  intention  to  deliver  on 
the  one  hand,  and  of  acceptance  on  the  other,  may  be  shown  by  direct 
evidence  of  the  intention,  or  may  be  presumed  from  acts  or  declara- 
tions, or  both  acts  and  declarations,  of  the  parties,  constituting  parts 
of  the  res  gestce,  which  manifest  such  intention ;  and  in  like  manner  the 
presumption  of  a  delivery  may  be  rebutted  and  overcome  by  proof  of 
a  contrary  intention,  or  of  acts  and  declarations  from  which  the  con- 
trary presumption  arises.  It  is  not  competent  to  control  the  effect  of 
the  deed  J)y  parol  evidence  when  it  has  once  taken  effect  by  delivery, 
but  it  is  always  competent  to  show  that  the  deed,  although  in  the 
grantee's  hands,  has  never,  in  fact,  been  delivered,  unless  the  grantor, 
or  those  claiming  through  him,  are  estopped  in  some  way  from  assert- 
ing the  non-delivery  of  the  deed.  In  this  case  the  deed  was  placed  in 
the  trunk  by  the  grantor,  to  be  taken  by  the  grantee  only  in  the  event 
of  the  death  of  the  grantor  while  in  the  army.  Pie  testifies:  'I  made 
this  deed,  so  that  if  I  got  killed  she  would  get  the  land,  and  my  broth- 
ers and  sisters  would  not  heir  it.  I  never  intended  she  should  have  a 
title  of  the  land  unless  I  got  killed  in  the  army.'  The  deed  never  was 
placed  upon  record,  and  remained  in  the  trunk,  where  it  had  been  de- 
posited by  the  grantor,  for  substantially  twenty  years,  without  being 
taken  by  the  grantee.  The  testimony  shows  that  the  grantor  never 
saw  the  deed  after  1863,  when  he  placed  it  in  the  trunk,  and  the  grantee 
took  no  manual  possession  of  it  until  in  18S3,  about  the  time  the 
mechanic's  lien  proceedings  were  instituted,  when  she.  for  the  first 
time,  took  the  deed  from  the  trunk  for  the  purpose  of  obtaining  advice 
as  to  its  effect,  and  upon  being  advised  that  it  was,  under  the  circum- 
stances, ineffectual  to  convey  title,  destroyed  it.  She  at  no  time  as- 
serted any  claim  under  the  deed,  or  attempted  to  do  so.  Both  testify, 
and  are  substantially  uncontradicted,  they  did  not  understand  that  the 
deed  was  ever  delivered,  or  intended  to  be  delivered,  or  that  the  title 
in  the  land  was  vested  in  Mrs.  Hudson.     An  application  of  the  prin- 


566  PAROL   EVIDENCE   RULE.  No.  531. 

ciples  before  announced  will  fully  justify  the  finding  that  the  deed  was 
in  fact  not  delivered."^ 


BURKE  V.  DULANEY  (1894). 
ijj  U.  S.  228,  2^4,  14  Sup.  816. 

This  action  was  brought  by  the  testator  of  the  appellees^  upon  a 
writing  purporting  to  be  the  promissory  note  of  the  appellant  for  forty- 
three  hundred  and  eight  dollars  and  eighty  cents,  dated  Salt 
^  Lake  City,  Utah,  August   10,   1883,  and  payable  one  year  after 

date,  for  value  received,  at  the  bank  of  Wells,  Fargo  &  Co.  in  that  city, 
with  interest  at  the  rate  of  six  per  cent  per  annum  from  date  until  paid. 

The  defendant,  Burke,  denied  his  liability  upon  the  note,  and  at  the 
trial  below  was  sworn  as  a  witness  on  his  own  behalf.  In  support  of 
his  defence,  as  set  forth  in  the  answer  filed  by  him,  he  stated  the  cir- 
cumstances under  which  the  note  was  given.  He  said:  "Mr.  Dulaney 
bought  this  group  of  mines — the  Live  Yankee  and  the  Mary  Ellen.  He 
came  to  the  Walker  House  in  Salt  Lake,  and  wanted  me  to  run  them 
for  him.  I  said  I  would  not  do  it  unless  I  got  a  show  to  get  some 
interest  in  the  property.  He  says,  I  will  carry  an  interest  for  you,  and 
you  can  take  it  if  you  want  it,  and  if  not,  you  can  give  it  back  to  me 
after  you  see  the  property."  To  this  testimony  the  plaintiff  objected, 
and  the  defendant  admitting  that  the  agreement  referred  to  by  him  was 
oral,  the  objection  was  sustained.  To  this  ruling  he  excepted.  Being 
asked  what  he  did  after  giving  the  note  in  suit,  he  answered:  "I  gave 
the  note.  I  worked  on  the  property,  which  was  done  some  time  in 
September;  worked  the  property  until  March;  settled  up  all  of  its 
debts,  paid  them,  notified  Dulaney  I  wanted  nothing  more  to  do  with 
the  property;  that  I  was  going  to  Idaho  Territory,  to  Coeur  d'  Alene 
mines,  and  as  I  was  ready  to  give  him  a  deed  at  any  time  he  would  send 
me  my  note.  That  is  all."  Objection  being  made  by  the  plaintiffs  to 
this  testimony,  the  defendant  offered  to  prove  "that  at  the  time  of  the 
giving  of  the  note  and  prior  thereto,  Dulaney,  the  payee  of  the  note, 
agreed  with  Mr.  Burk,  the  maker  of  the  note,  that  the  note  should  be 
given  to  represent  the  price  of  the  interest  that  Mr.  Burke  was  to 
have,  conditioned  upon  his  demanding  it  after  an  inspection  of  the 
mining  property  mentioned."  He  offered  also  to  prove  that  after  in- 
specting the  property  and  testing  it,  the  defendant  notified  testator  that 
he  did  not  want  the  interest;  that  he  was  prepared  to  make  a  deed  for 
the  interest  to  the  latter,  and  demanded  the  delivery  of  his  note.  All 
this  evidence  was  excluded  by  the  Court  upon  motion  of  the  plaintiffs 
to  which  ruling  the  defendant  excepted.  The  defendant  having  stated 
that  the  conversation  with  the  testator  above  referred  to,  and  which 
Avas  executed  by  the  Court,  took  place  prior  to  the  execution  of  the 
note,  he  offered  to  prove  that  at  the  time  the  note  was  made,  the  same 

3 — Compare  the  authorities  cited  in   W.,  §  2408. 


J 


No.  532.  A.   CREATION  OF  LEGAL  ACTS.  567 

agreement  was  made  orally  between  him  and  the  testator.  This  tes- 
timony was  also  excluded,   and  he  excepted.  .  .  . 

Harlan,  J. :  'The  general  rule  that  a  written  contract  cannot  be 
contradicted  or  varied  by  evidence  of  an  oral  agreement  between  the 
parties  before  or  at  the  time  of  such  contract,  has  been  often  recog- 
nized and  applied  by  this  Court,  especially  in  cases  in  which  it  was 
sought  to  deprive  bona  fide  holders  of  or  parties  to  negotiable  se- 
curities of  the  rights  to  which  they  were  entitled  according  to  the  legal 
import  of  the  terms  of  such  instruments.  .  .  .  The  authorities  cited  do 
jiot  determine  the  present  case.  The  issue  here  is  between  the  original 
parties  to  the  note.  And  the  evidence  offered  by  the  appellant,  and  ex- 
cluded by  the  Court,  did  not  in  any  sense  contradict  the  terms  of  the 
writing  in  suit,  nor  vary  their  legal  import,  but  tended  to  show  that  the 
written  instrument  was  never,  in  fact,  delivered  as  a  present  contract, 
unconditionally  binding  upon  the  obligor  according  to  its  terms  from  the 
time  of  such  delivery,  but  was  left  in  the  hands  of  Dulaney,  to  become 
an  absolute  obligation  of  the  maker  in  the  event  of  his  electing,  upon 
examination  or  investigation,  to  take  the  stipulated  interest  in  the  prop- 
erty in  question.  In  other  words,  according  to  the  evidence  offered  and 
excluded,  the  written  instrument,  upon  which  this  suit  is  based,  was  not 
— except  in  a  named  contingency — to  become  a  contract,  or  a  promissory 
note  which  the  payee  could  at  any  time  rightfully  transfer.  Evidence  of 
such  an  oral  agreement  would  show  that  the  contingency  never  happened, 
and  would  not  be  in  contradiction  of  the  writing.  It  would  prove  that 
there  never  was  any  concluded,  binding  contract  entitling  to  the  party 
who  claimed  the  benefit  of  it  to  enforce  its  stipulations.  The  exclusion 
of  parol  evidence  of  such  an  agreement  could  be  justified  only  upon  the 
ground  that  the  mere  possession  of  a  written  instrument,  in  form  a 
promissory  note,  by  the  person  named  in  it  as  payee,  is  conclusive  of  his 
right  to  hold  it  as  the  absolute  obligation  of  the  maker.  While  such 
possession  is,  undoubtedly,  prima  facie,  indeed,  should  be  deemed  strong 
evidence  that  the  instrument  came  to  the  hands  of  the  payee  as  an  obli- 
gation of  the  maker,  enforcible  according  to  its  legal  import,  it  is  open  to 
the  latter  to  prove  the  circumstances  under  which  possession  was  ac- 
quired, and  to  show  that  there  never  was  any  complete,  final  delivery  of 
the  writing  as  the  promissory  note  of  the  maker,  payable  at  all  events 
and  according  to  its  terms.  The  rule  that  excludes  parol  evidence  in 
contradiction  of  a  written  agreement  presupposes  the  existence  in  fact 
of  such  agreement  at  the  time  suit  is  brought.  But  the  rule  has  no 
application  if  the  writing  was  not  delivered  as  a  present  contract.  .  .  . 

"For  the  reasons  stated,  and  without  considering  the  case  in  other 
aspects,  we  are  of  opinion  that  it  was  error  to  exclude  the  evidence  of- 
fered by  the  defendant  tending  to  show  that  the  writing  sued  on  was  not 
delivered  to  or  received  by  Dulaney  as  the  promissory  note  of  the  de- 
fendant, binding  upon  him  as  a  present  obligation,  enforcible  according 
to  its  terms,  but  was  delivered  to  become  an  obligation  of  that  character 
when,  but  not  before,  the  defendant  examined  and,  by  working  them. 


568  PAROL    EVIDENCE   RULE.  No.  582. 

tested  the  mining  properties  purchased  by  the  plaintiff,  and  elected  to 
take  the  stipulated  interest  in  them."* 


PYM  V.  CAMPBELL  (1856). 
6  E.  &  B.  270. 

Action  on  a  contract  to  purchase  shares  in  an  invention.  The  con- 
tract was  dated  Jan.  17,  1854^  named  the  respective  shares  and  prices, 

and  vi^as  signed  by  Campbell,  Pym,  Mackenzie,  and  Pritchard. 
adtS  'pjjg  defendants  gave  evidence  that,  in  the  course  of  the  negoti- 

ations with  the  plaintiff,  they  had  got  so  far  as  to  agree  on  the  price  at| 
which  the  invention  should  be  purchased  if  bought  at  all,  and  had  ap- 
pointed a  meeting  at  which  the  plaintiff  was  to  explain  his  invention  to 
two  engineers  appointed  by  the  defendants,  when,  if  they  approved,  the 
machine  should  be  bought.  At  the  appointed  time  the  defendants  and 
two  engineers  of  the  names  of  Fergusson  and  Abernethie  attended;  but 
the  plaintiff  did  not  come;  and  the  engineers  went  away.  Shortly  after 
they  were  gone  the  plaintiff  arrived.  Fergusson  was  found,  and  ex- 
pressed a  favorable  opinion ;  but  Abernethie  could  not  then  be  found. 
It  was  then  proposed  that,  as  the  parties  were  all  present,  and  might 
find  it  troublesome  to  meet  again,  an  agreement  should  be  then  drawn 
up  and  signed,  which,  if  Abernethie  approved  of  the  invention,  should 
be  the  agreement,  but,  if  Abernethie  did  not  approve,  should  not  be 
one.  Abernethie  did  not  approve  of  the  invention  when  he  saw  it;  and 
the  defendants  contended  that  there  was  no  bargain.  The  Lord  Chief 
Justice  told  the  jury  that,  if  they  were  satisfied  that,  before  the  paper 
was  signed,  it  was  agreed  amongst  them  all  that  it  should  not  operate 
as  an  agreement  until  Abernethie  approved  of  the  invention,  they  should 
find  for  defendant  on  the  pleas  denying  the  agreement.  Verdict  for  the 
defendants. 

Erle,  J. :  "I  think  that  this  rule  ought  to  be  discharged.  The  point 
made  is  that  this  is  a  written  agreement,  absolute  on  the  face  of  it,  and 
that  evidence  was  admitted  to  show  it  was  conditional ;  and  if  that  had 
been  so  it  would  have  been  wrong.  But  I  am  of  opinion  that  the  evi- 
dence showed  that  in  fact  there  was  never  any  agreement  at  all.  The 
production  of  a  paper  purporting  to  be  an  agreement  by  a  party,  with  his 
signature  attached,  affords  a  strong  presumption  that  it  is  his  written 
agreement ;  and,  if  in  fact  he  did  sign  the  paper  animo  contrahendi,  the 
terms  contained  in  it  are  conclusive,  and  cannot  be  varied  by  parol  evi- 
dence. But  in  the  present  case  the  defence  begins  one  step  earlier;  the 
parties  met  and  expressly  stated  to  each  other  that,  though  for  con- 
venience they  would  then  sign  it  as  an  agreement  until  Abernethie  was 
consulted.  I  grant  the  risk  that  such  a  defence  may  be  set  up  without 
ground;  and  I  agree  that  a  jury  should  therefore  always  look  on  such 
a  defence  with  suspicion ;  but,  if  it  be  proved  that  in  fact  the  paper  was 

4 — Compare  the   authorities  cited  in  VV.,   §  2409. 


No.  534.  A.   CREATION  OF  LEGAL  ACTS.  569 

signed  with  the  express  intention  that  it  should  not  be  an  agreement,  the 
other  party  cannot  fix  it  as  an  agreement  upon  those  so  signing.  The 
distinction  in  point  of  law  is  that  evidence  to  vary  the  terms  of  an  agree- 
ment in  writing  is  not  admissible,  but  evidence  to  show  that  there  is  not 
an  agreement  at  all  is  admissible." 

Crompton,  J. :  "I  also  think  that  the  point  in  this  case  was  properly 
left  to  the  jury.  If  the  parties  had  come  to  an  agreement,  though  sub- 
ject to  a  condition  not  shown  in  the  agreement,  they  could  not  show  the 
condition,  because  the  agreement  on  the  face  of  the  writing  would  have 
been  absolute,  and  could  not  be  varied.  But  the  finding  of  the  jury  is 
that  this  paper  was  signed  on  the  terms  that  it  was  to  be  an  agreement 
if  Abernethie  approved  of  the  invention,  not  otherwise.  I  know  of  no 
rule  of  law  to  estop  parties  from  showing  that  a  paper,  purporting  to  be 
a  signed  agreement,  was  in  fact  signed  by  mistake,  or  that  it  was  signed 
on  the  terms  that  it  should  not  be  an  agreement  till  money  was  paid,  or 
something  else  done.  When  the  instrument  is  under  seal  it  cannot  be  a 
deed  until  there  is  a  delivery;  and  when  there  is  a  delivery  that  estops 
the  parties  to  the  deed,  that  is  a  technical  reason  why  a  deed  cannot  be 
delivered  as  an  escrow  to  the  other  party.  But  parol  contracts,  whether 
by  word  of  mouth  or  in  writing,  do  not  estop.  There  is  no  distinction 
between  them,  except  that  where  there  is  a  writing  it  is  the  record  of  the 
contract.  The  decision  in  Davis  v.  Jones,  17  Com.  B.  625,  is,  I  think, 
sound  law,  and  proceeds  on  a  just  distinction;  the  parties  may  not  vary 
a  written  agreement ;  but  they  may  show  that  they  never  came  to  an 
agreement  at  all,  and  that  the  signed  paper  was  never  intended  to  be  the 
record  of  the  terms  of  the  agreement ;  for  they  never  had  agreeing  minds. 
Evidence  to  show  that  does  not  vary  an  agreement,  and  is  admissible." 


STANLEY  v.  WHITE  (1896). 
160  III.  605,  4s  N.  E.  y2p 

Baker,  J.:  "This  was  a  bill  for  partition,  filed  by  Stanley  R.  White, 
against  John  Stanley  and  others,  in  the  circuit  court  of  Iroquois  county. 
The  cause  was  heard  upon  the  original  and  amended  bills  of  Stan- 
ooi  jgy  j^  White,  the  answers  thereto,  and  the  cross-bills  of  Jane  S. 
Talliaferro,  Mark  A.  Stanley  and  Dicie  A.  Warren,  and  the  answers 
and  replications  thereto.  The  testimony  was  taken  before  the  master  in 
chancery,  and  upon  the  filing  of  his  report  the  court  found  all  the 
allegations  in  complainant's  bills  and  in  the  cross-bills  to  be  true,  and 
that  partition  and  division  ought  to  be  made  as  prayed  in  complainant's 
bills,  and  rendered  a  decree  accordingly.  From  that  decree  defendant, 
John  Stanley,  prosecutes  this  appeal.  He  objects  to  that  part  of  the 
decree  awarding  partition  of  the  north-east  quarter  of  the  southwest 
quarter  of  section  33,  township  27,  north,  range  12,  west  of  the  second 
principal  meridian.  His  contention  is,  that  Jane  Talliaferro,  Mark 
Stanley   and   Dicie  Warren  have  no  rights  in  said  land,  and  are  not 


570  PAROL   EVIDENCE   RULE.  No.  534. 

entitled  to  the  one-sixth  interest  each  therein  ordered  by  said  decree 
to  be  set  off  to  them.  He  claims  that  their  interests  therein  they  had 
conveyed  to  him  by  a  good  and  sufficient  deed  prior  to  the  institution 
of  this  suit,  and  he  asks  that  the  decree,  as  to  that  part  of  it  awarding 
to  said  Jane  Talliaferro,  Mark  Stanley  and  Dicie  Warren  a  one-sixth 
interest  each  in  said  land,  be  reversed. 

"The  evidence  shows  that  appellant  and  Jane  Talliaferro,  Dicie 
Warren,  Mark  Stanley  and  Joseph  Stanley,  children,  and  Stanley  R. 
White,  grandchild,  of  Micajah  Stanley,  who  died  intestate,  are  his  sole 
surviving  heirs.  Among  other  lands  of  which  he  died  seized  was  the 
land  above  described.  After  his  father's  decease,  appellant  desired  to 
obtain  a  conveyance  to  himself  of  the  interests  of  the  heirs  in  said 
land.  To  that  end  he  had  prepared  for  him  the  deed  here  in  contro- 
versy, which  bears  the  date  of  March  15,  1889,  and  was  signed  by  Mark 
A.  Stanley  and  Jennie  E.,  his  wife,  Jane  S.  Talliaferro,  widow,  and 
Dicie  A.  Warren  and  George  E.,  her  husband,  all  of  whom  admit  that 
they  signed  the  deed  with  a  full  knowledge  of  its  contents.  Mark  A. 
and  Jennie  E.  Stanley  and  Jane  S.  Talliaferro  duly  acknowledged  the 
deed  on  July  25,  1889,  and  it  was  acknowledged  by  Dicie  A.  and  George 
E.  Warren  on  November  i,  1892.  The  evidence  shows  that  all  of  the 
grantors  did  not  sign  the  deed  at  the  same  time,  but  that  some  signed 
at  one  time  and  others  at  other  times,  and  that  after  the  several  sign- 
ings  the  deed  was  each  time  returned  either  to  appellant  or  to  his 
mother,  who  was  acting  for  him.  The  deed  has  remained  under  his 
control  ever  since  the  day  it  bears  date.  The  grantors  do  not  contend 
there  was  any  fraud,  duress  or  undue  influence  used  to  induce  them  to 
sign  the  deed.  Their  only  claim  is,  that  it  was  the  understanding  be- 
tween them  and  appellant,  at  the  time  the  deed  was  executed,  that  it 
was  not  to  be  operative  unless  signed  by  all  the  heirs  of  Micajah  Stan- 
ley. 

"The  question  to  be  decided  is,  was  there,  or  was  there  not,  a  de- 
livery of  this  deed  by  the  grantors  to  appellant?  The  answer  depends 
upon  the  answer  to  the  further  question,  what  was  the  intention  of  the 
parties  at  the  time  the  transaction  took  place?  If  the  parties  intended 
that  a  present  title  should  pass,  then  plainly  there  was  a  delivery.  If, 
after  appellees  had  signed  and  acknowledged  the  deed,  they  had  merely 
handed  it  to  appellant  for  the  purpose,  solely,  of  having  him  get  the 
signatures  of  the  other  heirs  thereto,  that  would  not  have  constituted 
a  delivery,  but  would  have  been  a  mere  manual  transfer  of  possession, 
and  would  not  have  passed  the  title.  If,  however,  the  deed  being  ready 
for  delivery,  they  had  given  it  to  him  intending  at  the  time  to 
pass  a  present  title,  but  with  the  mutual  verbal  understanding 
that  the  deed  should  subsequently  become  inoperative  and  void 
if  the  other  heirs  should  refuse  to  sign  it  when  requested  so  to  do,  then 
there  would  have  been  a  delivery  and  the  title  would  have  passed,  and 
the   grantors   could   not   thereafter   set   up   the   non-performance  of  the 


No.  535.  A.   CREATION  OF  LEGAL  ACTS.  571 

condition  in  order  to  defeat  the  deed,  but  would  be  concluded  by  its 
terms.  (Stevenson  v.  Crapnell,  114  111.  19;  McCann  v.  Atherton,  106 
id.  31 ;  Weber  v.  Christen,  121  id.  91.)  The  latter  hypothesis  presents 
the  facts  shown  by  the  record  in  this  case.  The  deed,  absolute  on  its 
face,  was  properly  signed  and  acknowledged.  The  grantors  were  ac- 
quainted with  its  contents,  and  they  deposited  it  with  the  grantee,  and 
under  his  control  it  has  remained  ever  since.  The  weight  of  the  evi- 
dence shows  that  when  the  grantors  gave  him  the  deed  they  thought 
they  were  divesting  themselves  of  the  title,  and  intended  so  to  do. 
Their  only  concern  seems  to  have  been  that  all  the  other  heirs  should 
do  as  they  were  doing,  hence  the  condition  was  added  that  if  the  other 
heirs  refused  to  sign  the  deed  it  should  become  void.  That  was  the 
condition,  and  not  that  the  deed  was  not  to  take  effect  unless  signed  by 
the  other  heirs.  .  .  . 

"Appellees  rely  upon  Roundtree  v.  Smith,  152  111.  493,  ...  as  sus- 
taining their  contention  that  there  was  here  no  delivery.  The  Round- 
tree  case  differs  from  the  case  at  bar  in  this :  that  there  the  deeds  were 
given  by  the  grantor  to  the  grantee  with  the  mutual  understanding  that 
they  were  not  to  take  effect  until  the  return  by  the  grantee  of  certain 
securities  to  the  grantor,  and  that  the  deeds  were  to  remain  subject  to 
the  latter's  control  until  the  securities  should  be  ofifered  and  accepted. 
The  securities,  however,  were  not  given.  We  said  there,  as  here,  that 
the  intention  must  govern,  and  held  that  there  was  no  delivery  because 
the  deeds  were  not  given  to  the  grantee  with  the  intention  of  then 
passing  the  title ;  that  the  grantor  had  never  parted  with  the  control 
over  them,  and  she  consequently  had  a  right  to  demand  them  back  at 
any  time  before  the  transaction  was  completed.  .  .  .  We  are  of  the 
opinion  that  appellant  is  entitled  to  the  estate  in  the  land  in  contro- 
versy which  the  deed  here  in  question  purports  to  convey  to  him."^ 


2.     Intent  and  Mistake. 

BRETT  V.  RIGDON  (1568). 
Plozvd.  340,  343. 

"The  making,  of  a  testament  consists  of  three  parts,  as  do  all  other 
human  acts  which  are  done  with  discretion  [j.  c.  sound  mind],  viz.,  incep- 
tion, progression,  and  consummation.  .  .  .  But  there  is  one  same 
**  **  thing  annexed  to  each  of  these  parts,  and  that  is  the  intent  of  the 
party,  for  every  one  who  does  any  act  with  discretion  has  an  intent  in 
the  inception  of  it,  .  .  .  and  in  the  progression  and  consummation  of  it 
the  same  intent  also  subsists ;  so  that  one  same  intent  runs  through  all 
the  parts  and  continues  in  the  doing  of  them". 

I— Compare   the   authorities   cited   in   \V.,   §  2410;   and  the  doctrine  of  No.   562,  post. 


572  PAROL   EVIDENCE   RULE.  No.  536. 

John    Austin,   Jurisprudence,   Campbell's   ed.,    Sect.   XVIII,   XIX, 
§§  601-617   (about  1832)  :     "In  order  that  we  may  settle  the  import  of 
the  term  'intention,'  it  is  necessary  to  settle  the  import  of  the  term 
°  'will.'     For,  although  an  intention  is  not  a  volition,  they  are  in- 

separably connected.  .  .  .  These  expressions,  and  others  of  the  same 
import,  merely  signify  this :  Certain  movements  of  our  bodies  follow 
invariably  and  immediately  our  wishes  or  desires  for  those  same  move- 
ments. .  .  .  For  example:  If  I  wish  that  my  arm  should  rise,  the  de- 
sired movement  of  my  arm  immediately  follows  my  wish.  There  is 
nothing  to  which  I  resort,  nothing!  which  I  wish,  as  a  mean  or  instru- 
ment wherewith  to  attain  my  purpose.  But  if  I  wish  to  lift  the  book 
which  is  now  lying  before!  me,  I  wish  certain  movements  of  my  bodily 
organs,  and  I  employ  these  as  a  mean  or  instrument  for  the  accomplish- 
ment of  my  ultimate  end.  .  .  .  Our  desires  of  those  bodily  movements 
which  immediately  follow  our  desires  of  them,  are  therefore  the  only 
objects  which  can  be  styled  volitions.  And  as  these  are  the  only  voli- 
tions, So  are  the  bodily  movements,  by  which  they  are  immediately  fol- 
lowed, the  only  acts  or  actions  properly  so  called.  .  .  .  Most  of  the 
names  which  seem  to  be  names  of  acts,  are  names  of  acts  coupled  with 
certain  of  their  consequences.  For  example:  If  I  kill  you  with  a  gun 
or  pistol,  I  shoot  you.  And  the  long  train  of  incidents  which  are  de- 
noted by  that  brief  expression,  are  considered  (or  spoken  of)  as  if  they 
constituted  an  act,  perpetrated  by  me.  In  truth,  the  only  parts  of  the 
train  which  are  my  act  or  acts,  are  the  muscular  motions  by  which  I 
raise  the  weapon,  point  it  at  your  head  or  body  and  pull  the  trigger. 
These  I  will. .  The  contact  of  the  fiint  and  steel,  the  ignition  of  the 
powder,  the  flight  of  the  ball  towards  your  body,  the  wound  and  subse- 
quent death,  with  the  numberless  incidents  included  in  these,  are  con- 
sequences of  the  act  which  I  will.  I  will  not  those  consequences,  al- 
though I  may  intend  them.  But  in  common  language  the  words  'will' 
and  'intend'  are  often  confounded.  ...  To  desire  the  act  is  to  will  it. 
To  expect  any  of  its  consequences  is  to  intend  those  consequences.  The 
act  itself  is  intended  as  well  as  willed.  For  every  volition  is  accom- 
panied by  an  expectation  or  belief,  that  the  bodily  movement  will  im- 
mediately follow  the  wish.  And  hence  (no  doubt)  the  frequent  con- 
fusion of  will  and  intention.  Feeling  that  will  implies  intention,  nu- 
merous writers  upon  jurisprudence  (and  Mr.  Bentham  amongst  the 
number),  employ,  'will'  and  'intention'  as  synonymous  or  equivalent 
terms.    They  forget  that  intention  does  not  imply  'will'." 


Thomas  Erskine  Holland,  Jurisprudence,  3d  ed.,  99   (1886)  :  "It 

was  laid  down  by  Savigny  that,  in  order  to  the  production  of  a  juristic 

act,  the  will  and  its  expression  must  be  in  correspondence.    This 

"    *       view  is  in  accordance  with  the  prima  facie  interpretation  of  most 

of  the  relevant  passages  in  the  Roman  lawyers,  and  is  still  predominant 


No.  537.  A.   CREATION  OF  LEGAL  ACTS.  573 

in  Germany,  but  certainly  cannot  be  accepted  as  universally  true.  An 
investigation  into  the  correspondence  between  the  inner  w^ill  and  its 
outward  manifestations  is  in'  most  cases  impossible,  and  where  possible 
is  in  many  cases  undesirable.  ...  Is  it  the  case  that  a  contract  is  not 
entered  into  unless  the  will  of  the  parties  are  really  at  one?  Must  there 
be,  as  Savigny  puts  it,  'a  union  of  several  wills  to  a  single,  whole,  and 
undivided  will?'  Or  should  we  not  rather  say  that  here,  more  even 
than  elsewhere,  the  law  looks,  not  at  the  will  itself,  but  at  the  will  as 
voluntarily  manifested?  When  the  law  enforces  contracts,  it  does  so  to 
prevent  disappointment  of  well-founded  expectations,  which,  though 
they  usually  arise  from  expressions  truly  representing  intention,  yet 
may  occasionally  arise  otherwise.  If,  for  instance,  one  of  the  parties 
to  a  contract  enters  into  it,  and  induces  the  other  party  to  enter  it, 
resolved  all  the  while  not  to  perform  his  part  under  it,  the  contract  will 
surely  be  good  nevertheless.  Not  only  will  the  dishonest  contractor 
be  unable  to  set  up  his  original  dishonest  intent  as  an  excuse  for  non- 
performance, but  should  he,  from  any  change  of  circumstances,  become 
desirous  of  enforcing  the  agreement  against  the  other  party,  the  latter 
will  never  be  heard  to  establish,  even  were  he  in  a  position  to  do  so  by 
irrefragable  proof,  that  at  the  time  when  the  agreement  w^as  made  the 
parties  to  it  were  not  really  of  one  mind.  .  .  .  The  language  of  systems 
of  positive  law  upon  the  point  is  generally  ambiguous,  nor  is  this  to 
be  wondered  at.  The  question  is  practically  a  new  one.  The  process 
of  giving  effect  to  the  free  acts  of  the  parties  to  a  contract,  rather  than 
to  the  fact  that  certain  rigidly  defined  formalities  have  been  complied 
with,  has  lasted  so  long  that  legal  speculation  has  only  recently  begun 
to  analyse  the  free  act  itself  into  two  factors  of  an  inner  will  and  an 
outward  expression,  and  to  assign  to  one  or  to  the  other  a  dominant 
place  in  the  theory  of  contract.  Just  as  the  Romans  used,  without  an- 
alysing them,  the  terms  'vcllc,'  'concensus'  'scntcntia,'  so  the  modern 
Codes,  though  some  appear  to  look  rather  to  the  inner  will,  others 
rather  to  its  outward  expression,  as  a  rule  employ  language  which  is 
capable  of  being  interpreted  in  either  direction.  The  same  may  be  said 
of  the  English  cases.  In  these  one  constantly  meets  with  such  phrases 
as  'between  him  and  them  there  was  no  concensus  of  mind,'  'with  him  they 
never  intended  to  deal' ;  but  one  also  meets  with  much  that  supports  the 
view  of  the  question  which  we  venture  to  hope  may  ultimately  commend 
itself  to  the  Courts  as  being  at  once  the  most  logical  and  the  most  fa- 
vourable to  the  interests  of  commerce.  ...  In  other  words :''  the  legal 
meaning  of  such  acts  on  the  part  of  one  man  as  induce  another  to  enter 
into  a  contract  with  him,  is  not  what  the  former  really  intended,  nor 
what  the  latter  really  supposed  the  former  to  intend,  but  what  a  'rea- 
sonable man,'  /.  c.  a  judge  or  jury,  would  put  upon  such  acts.  This 
luminous  principle  at  once  sweeps  away  the  ingenious  speculations  of 
several  generations  of  moralists,  while  it  renders  needless  long  lists  of 
subtle  distinctions  which  have  been  drawn  from  decided  cases." 


574  PAROL   EVIDENCE   RULE.  No.  538. 

Pollock,  C.  B.,  in  Cornish  v.  Abington,  4  H.  &  N.,  549,  j§^ 
(1859)  :  "The  word  'wilfully,'  in  the  rule  as  laid  down  in  Pickard  v. 
Sears,  means  nothing  more  than  'voluntarily.'  Lord  Wensley- 
"  **  dale,  perceiving  that  the  word  'wilfully'  might  be  read  as  opposed 
not  merely  to  'involuntarily'  but  to  'unintentionally,'  showed  that  if  the 
representation  was  made  voluntarily,  though  the  effect  on  the  mind  of  the 
hearer  was  produced  unintentionally,  the  same  result  would  follow,  if 
a  party  uses  language  which,  in  the  ordinary  course  of  business  and  the 
general  sense  in  which  words  are  understood,  conveys  a  certain  mean- 
ing, he  cannot  afterwards  say  he  is  not  bound  if  another,  so  understand- 
ing it,  has  acted  upon  it.  If  any  person,  by  a  course  of  conduct,  or  by 
actual  expressions,  so  conducts  himself  that  another  may  reasonably 
infer  the  existence  of  an  agreement  or  license,  whether  the  party  intends 
that  he  should  da  so  or  not,  it  has  the  effect  that  the  party  using  that 
language,  or  who  has  so  conducted  himself,  cannot  afterwards  gainsay 
the  reasonable  inference  to  be  drawn  from  his  words  or  conduct." 


FOSTER  v.  MACKINNON  (1869). 
L.  R.  4  C.  P.  704. 

Action  by  indorsee  against  indorser  on  a  bill  of  exchange  for  3000/. 
drawn  on  the  6th  of  November,  1867;  by  one  Cooper  upon  and  accepted 
by  one  Callow,  payable  six  months  after  date,  and  indorsed  suc- 
^^^  cessively  by  Cooper,  the  defendant,  J.  P.  Parker,  T.  A.  Pooley  & 
Co.,  and  A.  G.  Pooley,  to  the  plaintiff,  who  became  the  holder  for  value 
(having  taken  it  in  part-payment  of  a  debt  due  to  him  from  A.  G. 
Pooley)  before  it  became  due,  and  without  notice  of  any  fraud.  The 
pleas  traversed  the  several  indorsements,  and  alleged  that  the  defend- 
ant's indorsement  was  obtained  from  him  by  fraud. 

The  cause  was  tried  before  Bovill,  C.  J.,  at  the  last  spring  assizes  at 
Guildford.  The  defendant,  who  was  a  gentleman  far  advanced  in  years, 
swore  that  the  indorsement  was  not  in  his  handwriting,  and  that  he  had 
never  accepted  nor  indorsed  a  bill  of  exchange;  but  there  was  evidence 
that  the  signature  was  his;  and  Callow,  who  was  called  as  a  witness 
for  the  plaintiff,  stated  that  he  saw  the  defendant  write  the  indorsement 
under  the  following  circumstances: — Callow  had  been  secretary  to  a 
company  engaged  in  the  formation  of  a  railway  at  Sandgate,  in  Kent, 
in  which  the  defendant  (who  had  property  in  the  neighborhood)  was 
interested ;  and  the  defendant  had  some  time  previously,  at  Callow's 
request,  signed  a  guarantee  for  3000/.,  in  order  to  enable  the  company 
to  obtain  an  advance  of  money  from  their  bankers.  Callow  took  the 
bill  in  question  (which  was  drawn  and  indorsed  by  Cooper)  to  the 
defendant,  and  asked  him  to  put  his  name  on  it,  telling  him  it  was  a 
guarantee ;  whereupon  the  defendant,  in  the  belief  that  he  was  signing 
a  guarantee  similar  to  that  which  he  had  before  given  (and  out  of 
which  no  liability  had  resulted  to  him),  put  his  signature  on  the  back 


No.  539.  A.   CREATION  OF  LEGAL  ACTS.  575 

of  the  bill  immediately  after  that  of  Cooper.  Callow  only  shewed  the 
defendant  the  back  of  the  paper:  it  was,  however,  in  the  ordinary 
shape  of  a  bill  of  exchange,  and  bore  a  stamp,  the  impress  of  which 
was  visible  through  the  paper. 

The  Lord  Chief  Justice  told  the  jury  that,  if  the  indorsement  was  not 
the  signature  of  the  defendant,  or  if,  being  his  signature,  it  was  ob- 
tained upon  a  fradulent  representation  that  it  was  a  guarantee,  and  the 
defendant  signed  it  without  knowing  that  it  was  a  bill,  and  under  the 
belief  that  it  was  a  guarantee,  and  if  the  defendant  was  not  guilty  of 
any  negligence  in  so  signing  the  paper,  he  was  entitled  to  the  verdict. 
The  jury  returned  a  verdict  for  the  defendant. 

Byles,  J. :  "This  was  an  action  by  the  plaintiff  as  indorsee  of  a  bill 
of  exchange  for  3000/.,  against  the  defendant,  as  indorser.  The  defend- 
ant by  one  of  his  pleas  traversed  the  indorsement,  and  by  another  al- 
leged that  the  defendant's  indorsement  was  obtained  from  him  by  fraud. 
The  plaintiff  was  a  holder  for  value  before  maturity,  and  without  notice 
of  any  fraud.  ...  A  rule  nisi  was  obtained  for  a  new  trial,  first,  on  the 
ground  of  misdirection  in  the  latter  part  of  the  summing-up,  and  sec- 
ondly, on  the  ground  that  the  verdict  was  against  thei  evidence. 

"As  to  the  first  branch  of  the  rule,  it  seems  to  us  that  the  question 
arises  on  the  traverse  of  the  indorsement.  The  case  presented  by 
the  defendant  is,  that  he  never  made  the  contract  declared  on ;  that  he 
never  saw  the  face  of  the  bill ;  that  the  purport  of  the  contract  was 
fraudulently  misdescribed  to  him ;  that,  when  he  signed  one  thing,  he 
was  told  and  believed  that  he  was  signing  another  and  an  entirely  dif- 
ferent thing;  and  that  his  mind  never  went  with  his  act.  It  seems 
plain,  on  principle  and  on  authority,  that,  if  a  blind  man,  or  a  man  who 
cannot  read,  or  who  for  some  reason  (not  implying  negligence)  for- 
bears to  read,  has  a  written  contract  falsely  read  over  to  him,  the 
reader  misreading  to  such  a  degree  that  the  written  contract  is  of  a 
nature  altogether  different  from  the  contract  pretended  to  be  read  from 
the  paper  which  the  blind  or  illiterate  man  afterwards  signs ;  then,  at 
least  if  there  be  no  negligence,  the  signature  so  obtained  is  of  no  force. 
And  it  is  invalid  not  merely  on  the  ground  of  fraud,  where  fraud  exists, 
but  on  the  ground  that  the  mind  of  the  signer  did  not  accompany  the 
signature ;  in  other  words,  that  he  never  intended  to  sign,  and  therefore 
in  contemplation  of  law  never  did  sign,  the  contract  to  which  the  name 
is  appended. 

"The  authorities  appear  to  us  to  support  this  view  of  the  law.  In 
Thoroughgood's  Case  (2  Co.  Rep.  96),  it  was  held  that,  if  an  illiterate 
man  have  a  deed  falsely  read  over  to  him,  and  he  then  seals  and  delivers 
the  parchment,  that  parchment  is  nevertheless  not  his  deed.  In  a  note 
to  Thoroughgood's  Case,  in  Eraser's  edition  of  Coke's  Reports,  it  is 
suggested  that  the  doctrine  is  not  confined  to  the  condition  of  an  illiter- 
ate grantor.  .  .  .  The  position  that,  if  a  grantor  or  covenantor  be  de- 
ceived or  misled  as  to  the  actual  contents  of  the  deed,  the  deed  does 


576  PAROL   EVIDENCE   RULE,  No.  539, 

not  bind  him,  is  supported  by  many  authorities.  .  ,  .  Accordingly,  it  has 
recently  been  decided  in  the  Exchequer  Chamber,  that,  if  a  deed  be 
delivered,  and  a  blank  left  therein  be  afterwards  improperly  filled  up  (at 
least  if  that  be  done  without  the  grantor's  negligence),  it  is  not  the 
deed  of  the  grantor :  Swan  v.  North  British  Australasian  Land.  Com- 
pany (2  H.  &  C.  175). 

"These  cases  apply  to  deeds;  but  the  principle  is  equally  applicable 
to  other  written  contracts.  Nevertheless,  this  principle,  when  applied 
to  negotiable  instruments,  must  be  and  is  limited  in  its  application. 
These  instruments  are  not  only  assignable,  but  they  form  part  of  the 
currency  of  the  country.  A  qualification  of  the  general  rule  is  necessary 
to  protect  innocent  transferrees  for  value.  If,  therefore,  a  rnan  write 
his  name  across  the  back  of  a  blank  bill-stamp,  and  part  with  it,  and 
the  paper  is  afterwards  improperly  filled  up,  he  is  liable  as  indorser. 
If  he  write  it  across  the  face  of  the  bill,  he  is  liable  as  acceptor,  when 
the  instrument  has  once  passed  into  the  hand  of  an  innocent  indorsee 
for  value  before  maturity,  and  liable  to  the  extent  of  any  sum  which 
the  stamp  will  cover.  In  these  cases,  however,  the  party  signing  knows 
what  he  is  doing :  the  indorser  intended  to  indorse,  and  the  acceptor 
intended  to  accept,  a  bill  of  exchange  to  be  thereafter  filled  up,  leaving 
the  amount,  the  date,  the  maturity,  and  the  other  parties  to  the  bill 
undetermined.  But,  in  the  case  now  under  consideration,  the  defend- 
ant, according  to  the  evidence,  if  believed,  and  the  finding  of  the  jury, 
never  intended  to  indorse  a  bill  of  exchange  at  all,  but  intended  to  sign 
a  contract  of  an  entirely  different  nature.  It  was  not  his  design,  and 
if  he  were  guilty  of  no  negligence,  it  was  not  even  his  fault  that  the  in- 
strument he  signed  turned  out  to  be  a  bill  of  exchange.  It  was  as  if  he 
had  written  his  name  on  a  sheet  of  paper  for  the  purpose  of  franking 
a  letter,  or  in  a  lady's  album,  or  on  an  order  for  admission  to  the  Tem- 
ple Church,  or  on  the  fly-leaf  of  a  book,  and  there  had  already  been, 
without  his  knowledge,  a  bill  of  exchange  or  a  promissory  note  payable 
to  order  inscribed  on  the  other  side  of  the  paper. 

"To  make  the  case  clearer,  suppose  the  bill  or  note  on  the  other 
side  of  the  paper  in  each  of  these  cases  to  be  written  at  a  time  subse- 
quent to  the  signature,  then  the  fraudulent  misapplication  of  that  gen- 
uine signature  to  a  different  purpose  would  have  been  a  counterfeit 
alteration  of  a  writing  w,ith  intent  to  defraud,  and  would  therefore 
have  amounted  to  a  forgery.  In  that  case,  the  signer  would  not  have 
been  bound  by  his  signature,  for  two  reasons — first,  that  he  never  in 
fact  signed  the  writing  declared  on — and,  secondly,  that  he  never  in- 
tended to  sign  any  such  contract.  In  the  present  case,  the  first  reason 
does  not  apply,  but  the  second  reason  does  apply.  The  defendant  never 
intended  to  sign  that  contract,  or  any  such  contract.  He  never  in- 
tended to  put  his  name  to  any  instrument  that  then  was  or  thereafter 
might  become  negotiable.  He  was  deceived,  not  merely  as  to  the  legal 
effect,  but  as   to   the  actual  contents  of  the   instrument.  .  ,  ', 


No.  540.  A.   CREATION  OF  LEGAL  ACTS.  577 

"For  these  reasons,  we  think  the  direction  of  the  Lord  Chief  Justice 
was  right.  With  respect,  however,  to  the  second  branch  of  the  rule, 
we  are  of  opinion  that  the  case  should  undergo  further  investigation. 
We  abstain  from  giving  our  reasons  for  this  part  of  our  decision  only 
lest  they  should  prejudice  either  party  on  a  second  inquiry.  The  rule, 
therefore,  will  be  made  absolute  for  a  new  trial." 


TRAMBLY  v.  RICARD   (1881). 
/JO  Mass.  -?5p. 

Colt,  J. :  "The  first  count  in  the  plaintiff's  declaration  is  for  tres 
pass  to  real  estate,  and  removing  the  plaintiff's  furniture.  The  second 
is  for  the  conversion  of  the  same  furniture.  The  defendants,  in 
justification  of  their  acts,  rely  upon  an  alleged  breach  of  the 
plaintiff's  written  agreement,  which  stated  that  he  borrowed  the  furni- 
ture of  them,  and  by  which  he  agreed  to  hold  the  furniture  as  their 
property,  paying  them  a  weekly  sum  for  the  use  of  the  same,  with  the 
privilege  of  buying  it  at  a  price  named.  To  this  contract,  the  plaintiff, 
being  unable  to  read  or  write,  affixed  his  mark.  He  contended  at  the 
trial  that  it  was  obtained  from  him  by  fraud,  and  offered  to  prove  that, 
before  he  affixed  his  mark,  the  defendants  orally  agreed  to  sell  the 
furniture  to  him  at  a  price  named,  part  of  which  was  to  be  paid  down, 
and  the  balance  in  instalments ;  that  nothing  was  said  at  any  time 
about  borrowing  or  paying  rent  for  it;  and  that,  immediately  after 
agreeing  on  the  terms,  the  defendants  requested  him  to  sign  the  written 
contract,  which  he  did,  supposing  the  same  to  contain  the  terms  and 
stipulations  of  the  oral  agreement.  The  plaintiff  testified  that  the 
written  agreement  was  not  read  or  explained  to  him,  and  that  he  did 
not  request  that  it  should  be.  He  admitted  that  the  defendants  made  no 
verbal  or  written  representations  of  its  contents.  The  judge  excluded 
the  evidence;  and  the  only  question  here  is  whether  the  jury  would 
be  justified  in  finding  from  it  that  the  written  agreement  was  fraudu- 
lently obtained. 

"In  the  absence  of  fraud  or  imposition,  it  is  presumed  that  the  terms 
of  a  written  contract  were  known  and  assented  to  by  the  parties  who 
signed  it;  that  they  either  read  it,  or  were  informed  of  its  contents,  or 
were  willing  to  assent  to  its  terms  without  reading  it.  This  presumption 
is  not  defeated  by  showing  that  the  contract  signed  was  different  from 
that  which  one  or  the  other  supposed  he  was  signing.  It  is  not  per- 
mitted to  show  that  another  contract  was  the  real  contract,  because  the 
parties  have  chosen  to  put  their  agreement  in  writing,  as  the  better 
way  to  preserve  its  terms,  and  parol  evidence  cannot  be  admitted  to 
vary  it.  But  this  familiar  rule  does  not  exclude  evidence  which  tends 
to  show  that  the  written  contract  was  by  some  fraud  or  imposition  never 
in  fact  freely  and  intelligently  signed  by  the  party  sought  to  be 
charged.      It  may  always  be  shown  that  he  was  not  possessed  of  the 


578  PAROL   EVIDENCE   RULE.  No.  540. 

requisite  capacity,  or  that  his  signature  was  obtained  by  fraud.  .  .  . 
A  party  who  is  ignorant  of  the  contents  of  a  written  instrument,  from 
inability  to  read,  who  signs  it  without  intending  to,  and  who  is  charge- 
able with  no  negligence  in  not  ascertaining  the  character  of  it,  is  no 
more  bound  than  if  it  were  a  forgery.  There  has  been  no  intelligent 
assent  to  its  terms,  and  it  is  a  fraud  in  one  who  with  knowledge  of 
the  fact  attempts  to  enforce  it.  .  .  .  We  are  of  opinion,  that  the 
evidence  offered  should  have  been  submitted  to  the  jury,  with  proper 
instruction."^ 


ESSEX  V.  DAY  (1885). 
52  Conn.  48^. 

Suit  for  the  correction  of  certain  bonds  issued  by  the  plaintiffs, 
which  were  in  terms  payable  at  the  end  of  twenty  years  from  their  date, 
but  which  were  intended  to  be  issued  with  a  provision  that  the 
"*^  town  might  at  its  option  pay  them  in  ten  years  from  date; 
brought  to  the  Superior  Court  in  Middlesex  County.  The  following 
facts  were  found  by  a  committee:  On  the  25th  day  of  September,  1869, 
the  town  of  Essex  subscribed  for  four  hundred  and  eighty  shares  of 
the  capital  stock  of  the  Connecticut  Valley  Railroad  Company,  and  on 
the  27th  day  of  April,  1870,  directed  the  issue  of  town  bonds  to  the 
amount  of  $48,000  to  pay  for  the  stock.  .  .  . 

At  a  special  meeting  held  on  the  27th  day  of  April,  1870,  a  com- 
mittee had  made  the  following  report:  "That  the  town  issue  coupon 
bonds  of  the  denomination  of  one  thousand  dollars  each,  numbered 
from  one  to  forty-eight  consecutively,  to  be  payable  at  the  option  of  the 
town  in  ten  years  from  date,  and  due  in  twenty,  denominated  ten-twenty 
bonds,  bearing  interest  six  per  cent  per  annum;  the  interest  payable 
semi-annually ;  .  .  ."  The  town  passed  the  resolution  recommended 
and  the  selectmen  at  once  entered  upon  their  duties  under  it.  They 
did  not  intend  to  have  the  bonds  printed  as  they  were  printed,  as  below 
stated,  but  did  intend  that  they  should  be  printed  so  as  to  be  payable 
at  the  option  of  the  town  in  ten  years  from  their  date. 

The  printing  of  the  bonds  was  procured  by  James  C.  Walkley/  the 
president  of  the  railroad  company,  who  attended  to  that  duty  for 
Essex  and  other  towns.  He  did  it  for  Essex  at  the  request  of  C.  O. 
Spencer,  agent  of  the  town,  who  gave  him  a  written  memorandum 
which  Mr.  Walkley  gave  to  the  Kellogg  &  Bulkeley  Printing  Company, 
and  which  called   for  ten-twenty  bonds  only.     The  printing  company 

I — Compare  the   authorities  cited  in  W.,  tifice    to    throw    him    off    his    guard,    delib- 

§  2415,     and    the     following    statement    of  erately   signs   a   written   agreement   without 

the   rule:      Black   v.    R.    Co.,    iii    111.    351,  informing  himself  as  to  the   nature   of   its 

358     (1884):      "When    a    party    of    mature  contents,    he    will    nevertheless    be    bound." 

years  and  sound   mind,  being  able  to  read  2 — Compare  the  authorities  cited   in  W., 

and    write,    without    any   imposition    or   ar-  §  2416. 


No.  541.  A.       CREATION  OF  LEGaL  ACTS.  579 

consulted  with  Mr.  Walkley  as  to  the  general  form  of  the  bonds,  and 
showed  him  blank  forms  of  bonds;  but  the  bonds  were  printed  twenty- 
year  bonds  by  mistake  in  the  printing.  The  bonds  as  printed  were  re- 
turned to  thq  agents  of  the  town,  and  "competent  authority"  appointed 
by  the  selectmen  signed  them  and  they  were  then  left  with  the  town 
treasurer  to  be  sold.  There  were  in  all  forty-eight  bonds  of  $i,ooo  each. 
Of  these  bonds  the  four  in  question  in  this  case  were  sold  about  Janu- 
ary 1st,  1870,  to  F.  A.  Tiffany,  then  a  citizen  of  the  town  of  Essex. 
Each  bond  had  attached  interest  coupons  payable  every  six  months 
through  the  twenty  years  from  date.  ...  At  the  time  the  town 
treasurer  signed  the  bonds  he  signed  them  supposing  they  were  payable 
at  the  option  of  the  town  in  ten  years  from  their  date.  He  signed  them 
all  without  reading  any  of  them.  The  bonds  were  left  with  the  town 
treasurer   for  delivery  to  purchasers.  .  .  . 

At  the  time  Tiffany  bought  the  bonds  the  then  town  treasurer, 
Edward  W.  Redfield,  told  him  that  the  bonds  were  ten-twenty  bonds, 
and  at  the  option  of  the  town  could  be  called  in  and  paid  at  the  ex- 
piration of  ten  years  from  their  date,  and  that  such  was  the  vote 
of  the  town  in  authorizing  the  issue  of  the  bonds.  But  Tiffany  did 
not  care  whether  the  bonds  were  redeemable  in  five,  ten  or  twenty 
years,  and  would  have  bought  them  as  readily  in  the  one  case  as  in 
either  of  the  others.  Tiffany  sold  these  bonds  in  the  autumn  of  1878 
to  Daniel  S.  Swan.  Before  Swan  bought  them  he  called  upon  the  then 
town  treasurer  in  relation  to  the  bonds,  and  to  know  what  the  action 
of  the  town  would  be,  and  the  treasurer  told  him  what  the  vote  of 
the  town  was  in  authorizing  the  issue  of  the  bonds,  and  that  the  town 
would  call  them  in  at  the  expiration  of  ten  years  from  their  date,  and 
pay  them  up ;  and  that  the  town  had  already  called  them  in,  but  by 
mistake  they  had  been  called  a  year  too  soon.  Swan  sold  these  bonds  to 
the  defendant  April  20th,  1880,  at  a  premium  of  not  over  two, per 
cent.  The  defendant  at  the  time  of  his  purchase  had  full  knowledge 
of  the  vote  of  the  town  in  relation  to  the  issue  of  the  bonds,  and  that 
the  town  had  called  them  for  payment.  .  .  .  On  the  25th  of  February, 
1880,  the  town  gave  notice  by  publication  in  various  newspapers  tliat  the 
bonds  would  be  paid  at  the  office  of  the  treasurer  on  the  ist  of  April, 
1880,  and  that  interest  upon  them  would  cease  at  that  time.  None  of  the 
agents  of  the  town  appear  to  have  had  any  knowledge  that  there  had  been 
a  mistake  in  the  issue  of  the  bonds  until  the  town  was  informed,  after 
February  25th,  1880,  by  the  Chelsea  Savings  Bank,  a  holder  of  some  of 
them,  that  the  bonds  on  their  face  were  twenty  year  bonds  and  not  re- 
deemable before.  .  .  .  Upon  these  facts  the  court  (Sanford,  J.,)  ren- 
dered judgment  for  the  plaintiffs  and  for  a  correction  of  the  bonds  by 
inserting  in  them  an  option  on  the  part  of  the  plaintiffs  to  pay  them  at 
the  expiration  of  ten  years  from  their  date.     The  defendant  appealed. 

LooMis,  J. :  "It  is  not  necessary  for  us  to  consider  in  this  case 
whether  the  bonds  issued  by  the  town  are  to  be  regarded  as  negotiable 


580  PAROL   EVIDENCE    RULE.  No.  541. 

and  therefore  protected  in  the  hands  of  a  bona  fide  holder  against  the 
correction  which  the  plaintiffs  seek  to  procure.  We  may  assume  for 
the  purposes  of  this  case,  that,  in  the  absence  of  notice  on  the  part 
of  the  defendant  of  the  error  claimed  by  the  plaintiffs  to  have  inter- 
vened in  the  printing  of  the  bonds,  the  correction  could  not  be  made. 

"Starting  with  this  assumption,  the  questions  which  present  them- 
selves for  consideration  are  the  following: — i.  Have  the  plaintiffs, 
through  their  agents,  been  guilty  of  such  negligence,  either  in  the 
original  execution  and  issuing  of  the  bonds,  or  in  the  seeking  of  a 
correction  of  the  error  when  discovered,  as  precludes  them  from  the 
equitable  relief  which  they  seek?  2.  Did  the  first  purchaser  of  the 
bonds,  and  afterwards  the  purchaser  from  him,  and  finally  the  de- 
fendant at  the  time  of  his  purchase,  have  such  knowledge  of  the  error 
in  the  bonds,  either  actual  or  to  be  imputed,  as  gives  the  plaintiffs  a 
right,  as  against  them,  to  the  equitable  relief  which  they  seek?  3.  Was 
the  error  one  of  such  a  character  that  it  can  be  corrected  by  a  court 
of  equity?     .     .     . 

"i.  And  first — have  the  plaintiffs  been  guilty  of  a  fatal  negligence? 
.  .  .  We  think  therefore  that  the  negligence  of  the  plaintiffs  in  the 
execution  and  issuing  of  the  bonds,  was  not  of  such  a  character  as  to 
preclude  all  equitable  relief  against  the  present  defendant.     .     .     . 

"2.  Did  the  first  purchaser  of  the  bonds  in  question,  and  after- 
wards the  purchaser  from  him,  and  finally  the  defendant  at  the  time 
of  his  purchase,  have  such  knowledge  of  the  mistake,  either  actual  or  to 
be  imputed,  as  gives  the  plaintiffs  a  right,  as  against  them,  to  the 
equitable  relief  which  they  seek?  .  .  .  We  think  the  only  reasonable 
view  of  the  matter  is,  that  the  defendant  knew,  or  had  such  informa- 
tion that  the  law  would  impute  to  him  knowledge,  that  the  bonds 
were  by  mistake  issued  as  twenty  year  bonds  instead  of  ten-twenty 
ones. 

"3.  Was  the  mistake  one  of  such  a  character  that  it  can  be  cor- 
rected by  a  court  of  equity?  It  is  claimed  by  the  counsel  for  the  de- 
fendant that  the  mistake,  in  such  a  case,  must  be  mutual,  and  the 
cause  of  the  agreement,  and  numerous  authorities  are  cited  in  support 
of  the  proposition.  This  rule,  within  the  limits  of  its  proper  application, 
is  founded  in  reason.  If  a  contract  is  corrected  by  a  court  of  chancery 
to  make  it  conform  to  the  intention  of  one  of  the  parties,  it  is  of  course 
forcing  a  contract  upon  the  other  party  which  he  never  intended  to 
make,  unless  his  own  intent  concurred  with  that  of  the  other  party. 

"But  this  case  is  not  that  of  that  character  nor  governed  by  that 
rule.  A  grantor  by  mistake  embraces  in  his  deed  a  parcel  of  land 
that  neither  party  intended  to  have  conveyed.  The  grantee  sees  his 
mistake,  but  does  not  call  the  attention  of  the  grantor  to  it,  and  after- 
wards claims  the  parcel  thus  accidentally  conveyed.  Or  a  person  offers 
a  reward  of  $100  for  the  detection  and  arrest  of  a  burglar,  but  by 
mistake  and  without  his  notice  it  is  printed  $1,000.     A  man  who  knows 


No.  542.  A.   CREATION  OF  LEGAL  ACTS.  581 

of  the  mistake  arrests  the  burglar  and  claims  the  $i,ooo.  In  each  of 
these  cases  the  error  is  not  mutual,  but  wholly  on  the  one  side.  What 
is  there  on  the  other?  Not  mistake,  but  fraud.  That  fraud  can  never 
stand  for  a  moment  in  a  court  of  equity.  But  suppose  the  case  to  be  one 
where,  instead  of  actual  fraud,  there  is  merely  such  knowledge,  actual 
or  imputed  by  the  law,  as  makes  it  inequitable  for  the  purchaser  to 
retain  his  advantage.  The  Court  will  deal  as  summarily  with  that 
inequitable  position  of  the  party,  as  in  the  other  case  with  his  fraud. 

"It  is  however  claimed,  on  the  part  of  the  defendant,  that  the  mis- 
take must  have  been  one  that  induced  the  contract  on  the  part  of  the 
purchaser;  that  is  to  say,  that  the  purchaser  must  have  taken  the 
bonds  for  the  very  reason  that  they  were  twenty  year  bonds  and  not 
ten-twenty  ones.  But  it  is  obvious  that  the  hardship  attending  the 
correction  of  a  contract  is  all  the  greater  where  the  other  party  ac- 
cepted the  contract  for  the  reason  that  he  supposed  himself  to  be 
acquiring  what  the  correction  of  it  deprives  him  of.  But  supposing  the 
purchasers  of  the  bonds  in  question  had  taken  them  in  entire  indiffer- 
ence as  to  whether  they  were  twenty  yean  or  ten-twenty  bonds,  and 
that  the  defendant  was  now  endeavoring  to  assert  rights  under  them 
to  which  he  had  before  been  indifferent,  would  there  be  no  remedy  in 
equity?  Can  it  be  claimed  for  a  moment  that  equity,  which  deals  with 
substance  and  not  mere  form,  which  applies  reason  and  not  mere  arbi- 
trary rules,  would  see  no  substantial  difference  between  the  case  of  a 
party  who,  when  he  accepted  the  contract,  was  indifferent  with  regard 
to  a  known  mistake  and  so  remained,  and  one  who,  at  first  indifferent, 
was  now  trying  to  take  an  unjust  advantage  of  the  mistake? 

"We  conclude,  therefore,  that  there  was  nothing  in  the  nature  of 
the  mistake,  or  in  the  relation  of  the  parties  to  it,  that  should  lead  a 
court  of  equity  to  refuse  the  relief  sought." 


PARK  BROTHERS  &  CO.  v.  BLODGtTT  &  CLAPP  CO.   (1894). 
64  Conn.  28,  2<)  Ail.  ijj. 

Torrance,  J. :  "This  is  an  action  brought  to  recover  damages  for 
the  breach  of  a  written  contract,  dated  December  14th,  1888.  The 
contract  is  set  out  in  full  in  the  amended  complaint.  It  is  in 
^*"'  the  form  of  a  written  proposal  addressed  by  the  plaintiff  to  the 
defendant,  and  is  accepted  by  the  defendant  in  writing  upon  the  face  of 
the  contract.  Such  parts  of  the  contract  as  appear  to  be  material  are 
here  given:  'We  propose  to  supply  you  with  fifteen  net  tons  of  tool 
steel,  of  good  and  suitable  quality,  to  be  furnished  prior  to  January  ist, 
1890.  at'  prices  set  forth  in  the  contract  for  the  qualities  of  steel  named 
therein.  'Deliveries  to  be  made  f.  o.  b.  Pittsburg,  and  Xew  York 
freight  allowed  to  Hartford.     To  be  specified  for  as  your  wants  may 


582  PAROL   EVIDENCE    RULE.  No.  542, 

require.'  The  contract  was  made  at  Hartford,  by  the  plaintiff  through 
its  agent  A.  H.  Church,  and  by  the  defendant  through  its  agent  J.  B. 
Clapp.  After  filing  a  demurrer  and  an  answer  which  may  now  be  laid 
out  of  the  case,  the  defendant  filed  an  'answer  with  demand  for  refor- 
mation of  contract,'  in  the  first  paragraph  of  which  it  admitted  the 
execution  of  said  written  contract.  .  .  .  The  present  appeal  is  based 
upon  what  occurred  during  the  trial  with  reference  to  the  reforma- 
tion of  the  contract.  Upon  that  hearing  the  agent  of  the  defendant 
was  a  witness,  on  behalf  of  the  defendant,  and  was  asked  to  state  'what 
conversation  occurred  between  him  and  A.  H.  Church  in  making  the 
contract  of  December  14th,  1888,  at  and  before  the  execution  thereof 
and  relevant  thereto.'  The  plaintiff  'objected  to  the  reception  of  any 
parol  testimony  on  the  ground  that  the  same  was  inadmissible  to  vary 
or  contradict  the  terms  of  a  written  instrument,  or  to  show  any  other 
or  different  contract  than  that  specified  in  the  instrument,  or  to  show 
anything  relevant  to  the  defendant's  prayer  for  its  reformation.'  The 
Court  overruled  the  objection  and  admitted  the  testimony,  and  upon 
such  testimony  found  and  adjudged  as  hereinbefore   stated. 

"The  case  thus  presents  a  single  question — whether  the  evidence 
objected  to  was  admissible  under  the  circumstances;  and  this  depends 
upon  the  further  question,  which  will  be  first  considered,  whether  the 
mistake  was  one  which,  under  the  circumstances  disclosed  by  the  record, 
a  court  of  equity  will  correct.  The  finding  of  the  Court  below  is  as  fol- 
lows:— 'The  actual  agreement  between  the  defendant  and  the  plaintiff 
was  that  the  plaintiff  should  supply  the  defendant,  prior  to  January 
1st,  1890,  with  such  an  amount  of  tool  steel,  not  exceeding  fifteen  tons, 
at  the  defendant's  wants  during  that  time  might  require,  and  of  the 
kinds  and  upon  the  terms  stated  in  said  contract,  and  that  the  defendant 
would  purchase  the  same  of  the  plaintiff  on  said  terms.  But  by  the 
mutual  mistake  of  said  Church  and  said  Clapp,  acting  for  the  plaintiff 
and  defendant  respectively,  concerning  the  legal  construction  of  the 
written  contract  of  December  14th,  1888,  that  contract  failed  to  express 
the  actual  agreement  of  the  parties ;  and  that  said  Church  and  said 
Clapp  both  intended  to  have  the  said  written  contract  express  the  actual 
agreement  made  by  them,  and  at  the  time  of  its  execution  believed  that 
it  did.'  No  fraud  is  properly  charged,  and  certainly  none  is  found, 
and  whatever  claim  to  relief  the  defendant  may  have  must  rest  wholly 
on  the  ground  of  mistake. 

"The  plaintiff  claims  that  the  mistake  in  question  is  one  of 
law  and  is  of  such  a  nature  that  it  cannot  be  corrected  in  a 
court  of  equity.  That  a  court  of  equity  under  certain  circum- 
stances may  reform  a  written  instrument  founded  on  a  mistake  of 
fact  is  not  disputed;  but  the  plaintiff  strenuously  insists  that  it  can- 
not, or  will  not,  reform  an  instrument  founded  upon  a  mistake  like 
the  one  here  in  question  which  is  alleged  to  be  a  mistake  of  law.  The 
distinction  between  mistakes  of  law  and  mistakes  of  fact  is  certainly 


No.  542.  A.       CREATION  OF  LEGAL  ACTS.  583 

recognized  in  the  text  books  and  decisions,  and  to  a  certain  extent  is  a 
valid  distinction ;  but  it  is  not  practically  so  important  as  it  is  often  rep- 
resented to  be.  .  .  .  Under  certain  circumstances  a  court  of  equity  will, 
and  under  others,  it  will  not  reform  a  writing  founded  on  a  mistake 
of  facts ;  under  certain  circumstances  it  will,  and  under  others  it  will 
not,  reform  an  instrument  founded  upon  a  mistake  of  law.  It  is  no 
longer  true,  if  it  ever  was,  that  a  mistake  of  law  is  no  ground  for  relief 
in  any  case,  as  will  be  seen  by  the  cases  hereinafter  cited.  Whether, 
then,  the  mistake  now  in  question  be  regarded  as  one  of  law  or  one  of 
fact  is  not  of  much  consequence ;  the  more  important  question  is 
whether  it  is  such  a  mistake  as  a  court  of  equity  will  correct ;  and  this 
perhaps  can  only  or  at  least  can  best  be  determined  by  seeing  whether  it 
falls  within  any  of  the  well  recognized  classes  of  cases  in  which  such 
relief  is  furnished.     .     .     . 

"The  written  agreement  certainly  fails  to  express  the  real  agree- 
ment of  the  parties  in  a  material  point;  it  fails  to  do  so  by  reason  of  a 
mutual  mistake,  made,  as  we  must  assume,  innocently  and  without  any 
such  negligence  on  the  part  of  the  defendant  as  would  debar  him  from 
the  aid  of  a  court  of  equity ;  the  rights  of  no  third  parties  have  inter- 
vened; the  instrument  if  corrected  will  place  both  parties  just  where 
they  intended  to  place  themselves  in  their  relations  to  each  other ;  and 
if  not  corrected  it  gives  the  plaintiff  an  inequitable  advantage  over  the 
defendant.  It  is  said  that  if  by  mistake  words  are  inserted  in  a  written 
contract  which  the  parties  did  not  intend  to  insert,  or  omitted  which 
they  did  not  intend  to  omit,  this  is  a  mistake  of  fact  which  a  court  of 
■equity  will  correct  in  a  proper  case.  Sibert  v.  McAvoy,  (15  111.  106). 
If  then  the  oral  agreement  in  the  case  at  bar  had  been  for  the  sale 
and  purchase  of  five  tons  of  steel,  and  in  reducing  the  contract  to  writ- 
ing the  parties  had  by  an  unnoticed,  mistake  inserted  'fifteen  tons'  in- 
stead of  'five  tons,'  this  would  have  been  mistake  of  fact  entitling  the 
defendant  to  the  aid  of  a  court  of  equity.  In  the  case  at  bar  the  parties 
actually  agreed  upon  what  may,  for  brevity,  be  called  a  conditional 
purchase  and  sale,  and  upon  that  only.  In  reducing  the  contract  to 
writing  they,  by  an  innocent  mistake,  omitted  words  which  would  have 
expressed  the  true  agreement  and  used  words  which  express  an  agreement 
differing  materially  from  the  only  one  they  made.  There  is  perhaps  a 
distinction  between  the  supposed  case  and  the  actual  case,  but  it  is 
quite  shadowy.  They  differ  not  at  all  in  their  unjust  consequences. 
In  both,  by  an  innocent  mistake  mutually  entertained,  the  vendor  ob- 
tains an  unconscionable  advantage  over  the  vendee,  a  result  which 
was  not  intended  by  either.  There  exists  no  good  substantial  reason 
as  it  seems  to  us  why  relief  should  be  given  in  the  one  case  and  refused 
in  the  other,  other  things  being  equal.  It  is  hardly  necessary  to  say 
that  in  cases  like  the  one  at  bar,  courts  of  equity  ought  to  move  with 
great  caution.  Before  an  instrument  is  reformed  under  such  circum- 
stances, the  proof  of  the  mistake  and  that  it  really  gives  an  unjust  ad- 


584  PAROL   EVIDENCE   RULE.  No.  5i2. 

vantage  to  one  party  over  the  other,  ought  to  be  of  the  most  convincing 
character,     .     .     . 

"Upon  principle,  then,  we  think  a  court  of  equity  may  correct  a 
mistake  of  law  in  a  case  like  the  one  at  bar,  and  we  also  think  the 
very  great  weight  of  modern  authority  is  in  favor  of  that  conclusion. 
The  case  clearly  falls  within  that  class  of  cases  v/here  there  is  an 
antecedent  agreement,  and  in  reducing  it  to  writing,  the  instrument 
executed,  by  reason  of  the  common  mistake  of  the  parties  as  to  the 
legal  effect  of  the  words  used,  fails  as  to  one  or  more  material  points, 
to  express  their  actual  agreement.  ...  If  this  is  so,  then  clearly  he 
was  entitled  to  the  parol  evidence  which  the  plaintiff  objected  to;  for 
in  no  other  way  ordinarily  can  the  mistake  be  shown." 


GARRARD  v.  FRANKEL  (1862). 
30  Beav.  445. 

The  plaintiff,  Mr.  Garrard,  was  the  owner  of  the  house  No.  211 
Oxford  Street,  for  a  long  term  of  years ;  it  had  been  let  to  John  Parnell 
at  £230  per  annum,  which  was  shown  to  be  its  real  value.  In  July, 
i860,  this  house  was  to  be  let,  and  on  the  30th  of  July,  i860,  the 
defendant,  Mrs.  Frankel,  who  was  then  a  stranger  to  the  plaintiff,  wrote 
to  him  asking  for  the  particulars  relating  to  this  house  and  the  terms 
on  which  the  premises  were  to  be  let.  On  the  ist  of  August,  i860, 
the  plaintiff  wrote  to  the  defendant  to  the  effect  that  the  lowest  price 
required  was  £240  rent,  clear  of  all  taxes,  the  tenant  repaying  the  in- 
surance, and  that  the  fixtures  might  be  purchased  or  not,  at  the  tenant's 
option,  and  that,  if  not  purchased,  they  would  be  removed.  The  de- 
fendant said  that  she  had  never  received  this  letter,  but  the  Court 
thought  otherwise.  On  the  6th  of  August  Mrs.  Frankel  called  at  the 
office  of  Messrs.  Garrard  &  James  respecting  the  house.  The  plaintifif 
was  absent,  having  gone  to  Paris  on  the  ist  of  August,  where  he  re- 
mained until  the  nth;  but  she  then  saw  Mr.  James  his  partner.  Mr. 
James,  in  answer  to  her  further  inquiries,  informed  her  that  Mr.  Gar- 
rard would  not  let  the  premises  for  less  than  £240,  nor  otherwise  than  on 
a  lease  for  seven,  fourteen  or  twenty-one  years,  similar  to  that  granted 
to  the  former  tenant.  She  expressed  herself  satisfied,  and  said  that 
the  plaintiff's  immediate  determination  was  necessary,  that  she  held 
No.  I  Great  Portland  Street  at  a  rent  of  £160  per  annum  and  that  the 
lease  was  about  to  expire.  She  also  said  that  she  rented  another 
house  in  Oxford  Street  at  £145  per  annum,  and  she  referred  Mr.  James 
to  Mr.  Peter  Robinson,  and  Mr.  Turrill  her  landlord.  On  the  9th  of 
August,  i860,  the  defendant,  Mrs.  Frankel,  wrote  to  the  firm  as  fol- 
lows:    "Gentlemen — I  shall  feel  extremely  obliged  if  you  can  give  me 


Xo.  543.  A.       CREATION  OF  LEGAL  ACTS.  585 

an  answer  respecting  the  house  and  shop  in  Oxford  Street  tomorrow; 
as  I  must  give  a  decisive  answer  on  Saturday  next  respecting  the  other 
house  that  I  am  in  treaty  for."  On  the  14th  of  August,  i860,  Mrs. 
Frankel  called  on  Mr.  Garrard,  who  had  returned  from  Paris  on  the 
previous  Saturday;  he  informed  her  that  he  was  not  altogether  satis- 
fied of  her  responsibility,  and  that  he  was  not  disposed  to  let  the 
house  to  her,  unless  she  was  prepared  to  pay  a  premium  of  £125  as  a 
further  guarantee  for  her  responsibility,  in  which  case  he  would  reduce 
the  rent  from  £240  to  £230.  The  defendant,  after  consulting  her 
friends,  agreed  to  pay  a  premium,  and  the  inquiries  proceeded.  The 
plaintiff,  on  the  17th  of  August,  then  wrote  the  following  letter : 
"Madam — If  you  will  favor  me  with  a  call  on  Monday  between  twelve 
and  one,  we  shall  no  doubt  be  able  to  settle  finally  about  the  house  in 
Oxford  Street.  I  can  then  show  you  the  form  of  lease  granted  to  the 
late  tenant,  and  yours  would  be  similar  to  it.  My  clerk  called  on  Mr. 
Turrill  yesterday,  but  he  was  unwell,  his  daughter  said  he  would  write." 
On  the  20th  of  August,  i860,  Mrs.  Frankel  called  on  Mr.  Garrard,  who 
showed  her  the  draft  of  the  lease  to  the  former  tenant ;  she  then  agreed 
to  take  a  lease  in  the  same  form,  and  they  signed  the  following  mem- 
orandum which  was  written  within  the  fold  of  the  draft:  "The  within- 
named  Stephen  Garrard,  as  landlord,  agrees  to  let,  and  the  within- 
named  Elizabeth  Jane  Frankel,  as  tenant,  agrees  to  take,  the  prem.ises 
within  described  for  twenty-one  years  from  Michaelmas  next,  at  the 
rent  of  £230  clear  of  all  taxes,  and  in  all  respects  on  the  terms  of  the 
within  lease.  .  .  ." 

Mr.  Garrard  afterwards  inserted  certain  words  in  the  draft  lease, 
stating  the  amount  of  the  premium  to  be  paid,  and  he  inadvertently  filled 
in  the  blank  for  the  amount  of  rent  to  be  paid  with  the  figures  £130 
instead  of  £230.  The  lease  and  counterpart  were  engrossed  with  this 
error,  and  on  the  27th  August,  i860,  they  were  executed  without 
its  being  discovered.  Mr.  Garrard  did  not  discover  the  mistake  until 
just  before  Christmas  Day,  i860,  on  which  day  the  first  payment  of 
rent  under  the  lease  became  due.  He,  however,  wrote  to  Mrs.  Frankel, 
asking  for  £57,  los.  for  the  quarter's  rent,  being  at  the  rate  of  £230 
per  annum.  In  answer  to  this,  Mrs.  Frankel,  on  the  nth  January, 
t86i,  wrote,  insisting  that  the  rent  payable  under  the  lease  was  only 
£^2,  I  OS.  or  after  the  rate  of  £130  per  annum.  This  led  to  further  cor- 
respondence, and  ultimately,  on  the  26th  day  of  February,  1861.  the 
plaintiff  instituted  this  suit,  praying  that  the  lease  of  the  27th  of 
August,  i860,  might  be  rectified,  by  substituting  the  rent  of  £230  in- 
stead of  the  rent  of  £130.  and  that  the  lease  might  be  produced  for  that 
purpose,  or  otherwise,  that  the  lease  might  be  delivered  up  and  can- 
celled, the  plaintiff"  offering  to  execute  a  new  lease  at  the  rent  of  £230 
to  Mrs.  Frankel  at  his  own  expense. 

The  bill  also  prayed  an  injunction  restraining  her  from  partmg 
with  or  incumbering  the  lease,  or  doing  any  act  to  the  Plaintiff's  preju- 


586  PAROL   EVIDENCE   RULE.  No.  543. 

dice.  It  appeared,  however,  that  on  the  21st  of  September,  i860,  Mrs. 
Frankel  had  assigned  the  lease,  by  way  of  mortgage,  to  Messrs.  Block  & 
Son,  to  secure  a  sum  of  £150  which  she  had  borrowed  of  them,  and 
such  further  sums  as,  on  an  account  current,  should  be  due  to  them 
from  her^  not  exceeding  £300.  On  the  22d  of  February  186 1,  Dr. 
Brunn,  who  had  previously  lent  Mrs.  Frankel  £105,  paid  Messrs.  Block 
&  Son  £251,  2s.  6d.  due  to  them  from  her.  They  thereupon  reassigned 
the  lease  to  her,  but,  at  her  request,  they  handed  the  lease  and  mort- 
gage to  Dr.  Brunn.  The  bill  was  therefore  amended,  and  he  was 
made  a  party  to  the  suit. 

Mr.  Selwyn  and  Mr.  Bevir,  for  the  plaintifif,  argued  that  a  mistake 
had  been  clearly  proved,  and  that  the  plaintiff  was  entitled  to  have 
the  lease  reformed  so  as  to  make  it  in  accordance  with  the  real  contract 
between  the  parties,  and,  secondly,  that  Dr.  Brunn,  who  had  no  more 
than  an  equitable  interest,  had  no  right  as  against  the  Plaintiff,  whose 
equitable  rights  were  prior  in  point  of  time.  Mr.  Follctt  and  Mr.  King- 
don,  for  Mrs.  Frankel,  argued  that  there  had  been  no  error  or  mis- 
take ;  that  if  there  had  been,  it  was  merely  on  the  part  of  the  Plain- 
tiff, and  that  it  was  now  clearly  settled  that  a  document  could  only  be 
reformed  where  the  mistake  was  mutual.  Mr.  Bruce,  for  Dr.  Brunn, 
argued  that  he  was  a  purchaser  for  valuable  consideration  without 
notice,  and  though  the  legal  estate  was  not  vested  in  him,  still  he  stood 
in  the  position  of  Messrs.  Block,  who  had  advanced  their  money  and 
obtained  the  legal  estate,  which  was  now  held  as  trustee  for  the 
assignee  of  their  mortgage.  That  the  difficulty  had  not  been  occa- 
sioned by  the  Plaintiff's  own  neglect,  which  he  could  not  set  up  as 
against  innocent  parties.  .  .  . 

The  Master  of  the  Rolls  (Sir  John  Romilly)  :  "In  this  case 
the  bill  is  filed  to  rectify  a  mistake,  consisting  in  the  insertion  in  the 
lease  of  a  house  in  Oxford  Street,  granted  by  the  Plaintiff  to  the  De- 
fendant, of  the  figures  of  '130'  instead  of  '230,'  as  the  amount  of  the  an- 
nual rent  to  be  paid.  The  object  of  the  bill  is  to  substitute  'txvo'  for 
'one'  in  this  part  of  the  lease. 

"The  first  question  is  one  of  fact,  whether  the  mistake  was  really 
made,  and  if  so,  by  whom  and  under  what  circumstances.  That  the 
mistake  was  really  made  by  the  Plaintiff,  is,  I  think,  indisputably 
proved.  .  .  . 

"The  next  question  is  also  one  of  fact,  it  is  this : — Did  the  De- 
fendant know  that  this  statement  of  £130  per  annum  was  a  mistake? 
It  was  certainly  not  a  mistake  committed  by  her,  and  thereupon  it  is 
argued  that  there  must  be  an  end  of  the  case,  for  that,  to  enable  this 
Court  to  interfere  to  rectify  a  mistake,  the  mistake  must  be  mutual. 
But  though,  as  a  general  rule,  this  is  correct,  it  does  not  apply  to  every 
case.  The  Court  will,  I  apprehend,  interfere  in  cases  of  mistake,  where 
one  party  to  the  transaction,  being  at  the  time  cognizant  of  the  fact 
of  the  error,  seeks  to  take  advantage  of  it.     I  am  therefore  of  opinion 


No.  543.  A.   CREATION  OF  LEGAL  ACTS.  587 

that  this  question  arises : — Did  the  Defendant  bona  fide  believe  that  the 
contract  she  had  entered  into  was  one  to  take  a  lease  of  the  premises 
in  question,  determinable  at  her  option,  at  seven,  fourteen,  or  twenty- 
one  years,  at  £130  per  annum  rent?  ....  I  am  of  opinion  that  the  De- 
fendant must  have  perceived  the  discrepancy  between  the  amount  of 
rent  which  had  been  previously  stated  by  the  Plaintiff,  which  was  the 
same  amount  as  was  specified  in  the  agreement  signed  by  her,  written 
within  the  fold  of  the  draft  lease,  and  the  amount  contained  within 
the  body  of  it.  .  .  . 

"On  this  state  of  facts  the  question  of  law  arises,  how  a  case  so 
circumstanced  has  to  be  dealt  with.  ...  I  am  disposed  to  believe  that 
the  Defendant,  when  she  signed  it,  knew  that  the  lease  within  con- 
tained the  figures  £130,  although  she  knew  that  the  agreement  in  the 
fold  was  different.  My  belief  is  that  if  they  had  both  been  £230,  she 
would  equally  have  signed  the  agreement,  and  would  also  have  exe- 
cuted the  lease;  but  I  do  not  think  that  I  am  entitled  to  found  any 
decree  on  such  a  belief.  I  doubt  therefore  whether  I  can  compel  De- 
fendant to  be  bound  by  a  lease  inconsistent  with  a  portion  of  the  agree- 
ment which  she  signed,  and  which,  in  one  view  which  might  be  taken 
of  it,  might  govern  the  other  portion.  I  am  quite  clear  that  I  cannot 
compel  the  Plaintiff  to  be  bound  by  the  terms  of  the  lease  as  it  stands, 
or  permit  the  Defendant  to  derive  any  advantage  from  this  mistake, 
and,  in  that  respect,  the  Plaintiff  is  in  my  opinion  entitled  to  relief. 

"I  think  the  proper  course  to  be  taken  is  the  following:  I  shall 
give  the  Defendant  the  option  of  retaining  or  rejecting  the  lease,  but 
if  she  retains  it  I  shall  decree  the  lease  to  be  reformed  by  substituting 
the  rent  of  £230  for  £130  per  annum.  If,  however,  the  Defendant 
wishes  to  give  up  the  lease  and  agreement  altogether,  I  shall  permit 
her  so  to  do,  but  in  that  case  I  shall  direct  her  to  pay  for  the  use  and 
occupation  of  the  house,  during  the  time  she  had  possession  of  it,  at 
the  rate  of  £230  per  annum,  which  was  the  rent  paid  by  the  last  tenant, 
and  which  I  consider  to  be  proved  to  be  the  value  of  it.  .  .  . 

"The  next  question  which  arises  in  this  suit  is  to  consider  what 
ought  to  be  done  with  respect  to  Dr.  Brunn  and  his  claim  as  mort- 
gagee of  the  Defendant's  lease.  That  stands  in  this  way: — After  the 
lease  had  been  executed  it  was  assigned  by  the  Defendant  to  secure, 
a  sum  of  £300  and  interest  to  Messrs.  Block,  who  were  wholly  igno- 
rant of  any  mistake.  When  the  mistake  was  discovered  and  the  con- 
test in  this  suit  arose,  the  Plaintiff  applied  to  Messrs.  Block  to  assign 
the  legal  estate  to  him,  and  he  offered  to  pay  them  what  was  due 
on  their  mortgage.  Messrs.  Block,  under  the  advice  of  their  solicitor, 
and  in  my  opinion  very  properly,  declined  to  give  any  advantage  to 
either  side;  they  undertook  not  to  assign  the  lease  to  anyone  except 
the  Defendant  or  the  Plaintiff,  but  that  if  the  Defendant,  to  whom  they 
had  advanced  the  money,  was  prepared  to  repay  them,  they  would 
reassign  the  lease  to  her  first;  but  if  not,  they  would,  upon  repayment 


588  PAROL   EVIDENCE   RULE.  No.  543. 

of  the  amount  due,  assign  the  lease  to  the  Plaintiff.  The  Defendant 
induced  Dr.  Brunn  to  advance  the  money  to  Messrs.  Block,  and  they 
thereupon  reassigned  the  lease  to  the  Defendant,  who  gave  such  se- 
curity thereon  as  she  could  to  Dr.  Brunn,  v^ho  had,  by  that  time, 
notice  of  the  v^^hole  transaction,  this  Court  having  also  interposed  by 
injunction  to  prevent  any  fresh  dealing  with  the  lease,  so  as  to  create 
new  obligations  upon  it.  In  this  state  of  things  I  think  that  Dr.  Brunn 
stands  exactly  in  the  position  of  Messrs.  Block,  with  the  exception 
that  he  has  not  got  the  legal  estate.  As  regards  the  Messrs.  Block,  I 
am  clearly  of  opinion  that  they  were  purchasers  for  value,  with- 
out notice,  to  the  extent  of  the  amount  which  they  advanced,  and,  in 
my  opinion,  in  equity  Dr.  Brunn  stands  in  their  place.  I  am  of  opinion, 
therefore,  that  the  Plaintiff  must  pay  Dr.  Brunn  the  amount  due  on 
Messrs.  Blocks'  mortgage  transferred  to  him,  though  not  directly,  from 
them ;  and  that  if  the  Plaintiff  do  not  repay  it,  Dr.  Brunn  must  have 
a  charge  for  this  amount  on  the  house,  as  against  the  Plaintiff  and 
his  interest  therein.  I  think  the  same  observations  also  apply  to  a 
sum  of  £105  which  Dr.  Brunn  advanced  to  the  Defendant  on  the  se- 
curity of  the  lease  before  he  had  any  knowledge  or  any  reason  to 
suppose  that  there  was  any  error  in  the  body  of  the  lease  itself;  and 
I  also  think  that  Dr.  Brunn  must  be  allowed  to  add  his  costs  of  this 
suit  to  his  security,  and  that  the  whole  must  be  a  charge  on  the  house 
and  premises  in  the  hands  of  the  Plaintiff  if  the  lease  be  given  up, 
or  upon  his  interest  therein  if  the  lease  be  reformed.  But  I  am  of 
opinion  that,  upon  payment  of  this,  the  Plaintiff  is  entitled  to  have 
inserted  in  the  decree  an  order  against  the  Defendant  to  repay  the 
total  amount  so  paid  by  him  to  Dr.  Brunn ;  in  addition  to  which,  if  the 
Defendant  elects  to  keep  the  house  with  the  lease  as  altered  by  the 
introduction  of  the  increased  rent,  her  interest  therein  will,  whatever 
be  its  value,  be  primarily  liable  for  the  repayment  of  such  sum."^ 


BARKER  v.  STERNE    (1854). 
p  Exch.  684. 

At  the  trial,  before  Pollock,  C.  B.,  at  the  London  Sittings,  it 
appeared  that  Messrs.  Seegers,  who  were  commission  agents  in  Lon- 
don, were  in  the  habit  of  receiving  consignments  of  goods  from 
"**  one  Matthes,  a  merchant  residing  at  Redevitz,  in  Bavaria.  On 
these  occasions  it  was  usual  for  Matthes  to  send  to  Messrs.  Seegers  a 
blank  form  of  a  bill  of  exchange,  with  his  signature  as  drawer,  and 
they  filled  it  up  and  got  it  accepted  by  the  purchaser  of  the  goods.  In 
accordance  with  that  course  of  dealing,  Matthes,  at  Redevitz,  signed, 
as  drawer,  a  blank  form  of  the  bill  in  question,  and  sent  it  to  Messrs. 

I — Compare   the  authorities   cited   in   W.,    §§  2417,    2418. 


No.  544,  A.   CREATION  OF  LEGAL  ACTS.  589 

Seegers  in  a  letter  advising  them  of  a  consignment  of  goods,  and 
Messrs.  Seegers  in  London  filled  up  the  blanks  by  inserting  the  date, 
amount,  &c.,  as  stated  in  the  declaration ;  and,  having  got  the  bill  ac- 
cepted by  the  defendant,  applied  it  to  their  own  purposes,  when  it  was 
bona  fide  endorsed  to  the  plaintiffs  for  value.  It  was  submitted,  on 
behalf  of  the  defendant,  that,  as  Messrs.  Seegers  had  only  a  limited 
authority  to  fill  up  the  blank  form,  in  order  to  obtain  payment  of  the 
goods  consigned  to  them,  this  was  in  effect  a  bill  drawn  in  London, 
and  therefore  required  a  stamp.  The  learned  Judge  overruled  the 
objection,  and  a  verdict  was  found  for  the  plaintiffs,  leave  being  re- 
served to  the  defendant  to  move  to  enter  a  verdict  for  him.  .  .  . 

Pollock,  C.  B.  :  "This  was  a  motion  for  a  new  trial,  in  a  case 
tried  before  me  at  Guildhall.  It  was  an  action  on  a  bill  of  exchange, 
drawn  abroad  in  blank,  and  filled  up  in  London.  Mr.  Chambers  moved 
for  a  new  trial,  on  the  ground  that,  the  blank  form  of  the  bill  having 
been  improperly  filled  up  contrary  tO'  the  direction  and  intention  of  the 
drawer,  it  was  not  binding  as  against  him,  and  that  it  only  became 
a  bill  in  London,  and  consequently  required  a  stamp.  We  are  of  opin- 
ion, on  the  authority  of  Snaith  v.  Mingay,  that  this  is  not  an  inland 
bill,  and  therefore  no  stamp  is  necessary.  It  seems  to  us  that  the 
mode  in  which  Mr.  Chambers^  presented  the  objection  must  fail,  for  in 
reality,  quoad  mankind  at  large,  the  authority  of  a  person  who  holds 
such  a  piece  of  paper  with  the  name  of  a  drawer  or  an  acceptor  upon 
it,  must  be  judged  of  from  the  paper  itself.  If  a  person  in  this  country 
puts  his  name  to  a  blank  form  of  bill,  either  as  drawer  or  acceptor, 
it  may  be  filled  up  with  any  amount  the  stamp  will  bear,  and  he  cannot 
shelter  himself  from  liability  by  any  private  instructions  contained  in 
a  separate  document,  of  which  the  rest  of  the  world  must  necessarily 
be  ignorant.  There  is  a  case  (Younge  v.  Grote,  4  Bing.  253)  where 
a  customer  of  a  banker,  on  leaving  home,  gave  to  his  wife  several 
blank  forms  of  checks,  signed  by  himself,  and  desired  her  to  fill  them  up 
according  to  the  exigency  of  his  business.  She  filled  up  one  of  them 
so  carelessly,  that  a  clerk  to  whom  she  delivered  it  wis  enabled  to 
alter  the  amount  to  a  larger  sum,  in  such  a  way  that  the  bankers  could 
not  discover  the  alteration,  and  they  paid  it:  it  was  held  that  the  loss 
must  fall  on  the  drawer,  as  it  was  caused  by  his  negligence.  Now, 
whether  the  better  ground  for  supporting  that  decision  is,  that  the 
drawer  is  responsible  for  his  negligence,  which  has  enabled  a  fraud 
to  be  practised,  or  whether  it  be  considered  that,  when  a  person  issues 
a  document  of  that  kind,  the  rest  of  the  world  must  judge  of  the  au- 
thority to  fill  it  up  by  the  paper  itself,  and  not  by  any  private  instruc- 
tions, it  is  unnecessary  to  inquire.  I  should  prefer  putting  it  on  the 
latter  ground.  For  these  reasons  we  think  that,  in  this  case,  there 
ought  to  be  no  rule."- 

2 — Compare  the  authorities  cited  in   \V.,    §  2419. 


590  PAROL   EVIDENCE   RULE.  No.  545. 


BAXENDALE  v.  BENNETT    (1878). 
L.  R.  3  Q-  B.  D.  525. 

Action  commenced  on  the  loth  July,  1876,  on  a  bill  of  exchange, 
dated  the  nth  of  March,  1872,  for  50/.  drawn  by  W.  Cartwright  and 
accepted  by  the  defendant,  and  of  which  the  plaintiff  was  the 
^*^  holder,  and  her  interest.  At  the  trial  before  Lopes,  J.,  with- 
out a  jury,  at  the  Hilary  Sittings  in  Middlesex,  the  following  facts 
were  proved:  The  bill  dated  the  nth  of  March,  1872,  on  which  the 
action  was  brought,  purported  to  be  drawn  by  one  W.  Cartwright  on 
the  defendant,  payable  to  order  at  three  months'  date.  It  was  indorsed 
in  blank  by  Cartwright,  and  also  by  one  H,  T.  Cameron.  The  plain- 
tiff received  the  bill  from  Cameron  on  the  3rd  of  June,  1872,  and  was 
the  bona  Me  holder  of  it,  without  notice  of  fraud,  and  for  a  valuable 
consideration.  One'  J.  F.  Holmes  had  asked  the  defendant  for  his 
acceptance  to  an  accommodation  bill,  and  the  defendant  had  written 
his  name  across  a  paper  which  had  an  impressed  bill  stamp  on  it,  and 
had  given  it  to  Holmes  to  fill  in  his  name,  and  then  to  use  it  for  the 
purpose  of  raising  money  on  it.  Afterwards  Holmes,  not  requiring 
accommodation,  returned  the  paper  to  the  defendant  in  the  same  state 
in  which  he  had  received  it  from  him.  The  defendant  then  put  it  into 
a  drawer,  which  was  not  locked,  of  his  writing  table  at  his  chambers, 
to  which  his  clerk,  laundress,  and  other  persons  coming  there  had 
access.  He  had  never  authorized  Cartwright  or  any  person  to  fill 
up  the  paper  with  a  drawer's  name,  and  he  believed  that  it  must  have 
been  stolen  from  his  chambers. 

On  these  facts  the  learned  judge  found  that  the  bill  was  stolen 
from  the  defendant's  chambers,  and  the  name  of  the  drawer  after- 
wards added  without  the  defendant's  authority ;  but  that  the  defend- 
ant had  so  negligently  dealt  with  the  acceptance  as  to  have  facilitated 
the  theft;  he  therefore  ruled  upon  the  authority  of  Young  v.  Grote 
(4  Bing.  253),  and  Ingham  v.  Primrose  (7  C.  B.  (N.  S.)  82),  that 
the  defendant  was  liable,  and  directed  judgment  to  be  entered  for  the 
plaintiff  for  50/.  and  costs.  .  .  . 

Bramwell,  L.  J.:  "I  am  of  opinion  that  this  judgment  cannot 
be  supported.  The  defendant  is  sued  on  a  bill  alleged  to  have  been 
drawn  by  W.  Cartwright  on  and  accepted  by  him.  In  very  truth  he  never 
accepted  such  a  bill ;  and  if  he  is  to  be  held  liable,  it  can  only  be  on 
the  ground  that  he  is  estopped  to  deny  that  he  did  so  accept  such  a  bill. 
Estoppels  are  odious,  and  the  doctrine  should  never  be  applied  without 
a  necessity  for  it.  It  never  can  be  applied  except  in  cases  where  the 
person  against  whom  it  is  used  has  so  conducted  himself,  either  in 
what  he  has  said  or  done,  or  failed  to  say  or  do,  that  he  would,  unless 
estopped,  be  saying  something  contrary  to  his  former  conduct  in  what 
he  had  said  or  done,  or  failed  to  say  or  do.     Is  that  the  case  here? 


No.  545.  A.      CREATION  OF  LEGAL  ACTS.  591 

Let  us  examine  the  facts.  The  defendant  drew  a  bill  (or  what  would 
be  a  bill  had  it  had  the  drawer's  name)  without  a  drawer's  name, 
addressed  to  himself,  and  then  wrote  what  was  in  terms  an  acceptance 
across  it.  In  this  condition,  it,  not  being  a  bill,  was  stolen  from  him, 
filled  up  with  a  drawer's  name,  and  transferred  to  the  plaintiff,  a  bona 
fide  holder  for  value.  It  may  be  that  no  crime  was  committed  in  the 
filling  in  of  the  drawer's  name,  for  the  thief  may  have  taken  it  to  a 
person  telling  him  it  was  given  by  the  defendant  to  the  thief  with 
authority  to  get  it  filled  in  with  a  drawer's  name  by  any  person  he, 
the  thief,  pleased.  This  may  have  been  believed  and  the  drawer's  name 
bona  fide  put  by  such  person.  I  do  not  say  such  person  could  have 
recovered  on  the  bill ;  I  am  of  opinion  he  could  not ;  but  what  I  wish 
to  point  out  is  that  the  bill  might  be  made  a  complete  instrument 
without  the  commission  of  any  crime  in  the  completion.  But  a  crime 
was  committed  in  this  case  by  the  stealing  of  the  document,  and  with- 
out that  crime  the  bill  could  not  have  been  complete,  and  no  one  could 
have  been  defrauded.  Why  is  not  the  defendant  at  liberty  to  show 
this?  Why  is  he  estopped?  What  has  he  said  or  done  contrary  to 
the  truth,  or  which  should  cause  any  one  to  believe  the  truth  to  be 
other  than  it  is?  Is  it  not  a  rule  that  every  one  has  a  right  to  sup- 
pose that  a  crime  will  not  be  committed,  and  to  act  on  that  belief  ? 
Where  is  the  limit  if  the  defendant  is  estopped  here?  Suppose  he 
had  signed  a  blank  cheque,  with  no  payee,  or  date,  or  amount,  and  it 
was  stolen,  would  he  be  liable  or  accountable,  not  merely  to  his  banker 
the  drawee,  but  to  a  holder?  If  so,  suppose  there  was  no  stamp  law, 
and  a  man  simply  wrote  his  name,  and  the  paper  was  stolen  from  him, 
and  somebody  put  a  form  of  a  cheque  or  bill  to  the  signature,  would 
the  signer  be  liable?  I  cannot  think  so.  But  what  about  the  authori- 
ties? It  must  be  admitted  that  the  cases  of  Young  v.  Grote  and  Ing- 
ham v.  Primrose  go  a  long  way  to  justify  this  judgment;  but  in  all 
those  cases,  and  in  all  the  others  where  the  alleged  maker  or  acceptor  has 
been  held  liable,  he  has  voluntarily  parted  with  the  instrument ;  it 
has  not  been  got  from  him  by  the  commission  of  a  crime.  This,  un- 
doubtedly, is  a  distinction,  and  a  real  distinction.  The  defendant  here 
has  not  voluntarily  put  into  any  one's  hands  the  means,  or  part  of  the 
means,  for  committing  a  crime.  But  it  is  said  that  he  has  done  so 
through  negligence.  I  confess  I  think  he  has  been  negligent ;  that  is 
to  say,  I  think  if  he  had  had  this  paper  from  a  third  person,  as 
a  bailee  bound  to  keep  it  with  ordinary  care,  he  would  not  have  done 
so.  But  then  this  negligence  is  not  the  proximate  or  effective  cause 
of  the  fraud.     A  crime  was  necessary  for  its  completion.  .  .  ." 

Brett,  L.  J. :     "In  this  case  I  agree  with  the  conclusion  at  which 
my   Brother   Bramwell  has   arrived,  but   not   with   his    reasons.  .  .  . 
It   seems   to    me   that   the   defendant   never   authorized   the   bill   to   be 
filled    in    with    a    drawer's    name,    and    he    cannot    be    sued   on    it.  .  .  . 
In  this  case  it  is  true  that  the  defendant  after  writing  his  name  across 


592  PAROL   EVIDENCE   RULE.  NO.  545. 

the  Stamped  paper  sent  it  to  another  person  to  be  used.  When  he  sent 
it  to  that  person,  if  he  had  filled  it  in  to  any  amount  that  the  stamp 
would  cover  the  defendant  would  be  liable,  because  he  sent  it  with  the 
intention  that  it  should  be  acted  upon;  but  it  was  sent  back  to  the 
defendant,  and  he  was  then  in  the  same  condition  as  if  he  had  never 
issued  the  acceptance.  The  case  is  this:  the  defendant  accepts  a  bill 
and  puts  it  into  his  drawer,  it  is  as  if  he  had  never  issued  it  with  the 
intention  that  it  should  be  filled  up;  it  is  as  if  after  having  accepted 
the  bill  he  had  left  it  in  his  room  for  a  moment  and  a  thief  came  in 
and  stole  it.  He  has  never  intended  that  the  bill  should  be  filled  up 
by  anybody  and  no  person  was  his  agent  to  fill  it  up.  Then  it  has  been 
said  that  the  defendant  is  liable  because  he  has  been  negligent;  but 
was  the  defendant  negligent?  ...  He  put  the  bill  into  a  drawer  in 
his  own  room;  to  say  that  was  a  want  of  due  care  is  impossible;  it 
was  not  negligence  for  two  reasons,  first,  he  did  not  owe  any  duty  to 
any  one,  and,  secondly,  he  did  not  act  otherwise  than  in  a  way  which 
an  ordinary  careful  man  would  act.  ...  In  the  present  case  I  think 
there  was  no  estoppel,  no  ratification,  and  no  negligence,  and  that  the 
defendant  is  entitled  to  our  judgment." 

Baggallay,  L.  J.,  concurred  that  the  judgment  ought  to  be  entered 
for  the  defendant. 


HUBBARD  v.  GREELEY    (1892). 

84  Me.  340,  24  Atl.  7pp. 

Action   by   Joshua   G.    Hubbard    against    Everard   H.    Greeley    and 
others.     Judgment   for  plaintiff. 

Walton,  J. :  "Whether  the  grantee  named  in  a  deed  de- 
^*  livered  as  an  escrow,  who  has  wrongfully  obtained  it  and  put 
it  on  record,  can  convey  a  good  title  to  a  bona  fide  purchaser,  is  a 
question  in  relation  to  which  the  authorities  are  in  conflict.  In  Blight 
V.  Schenck,  10  Pa.  St.  285,  the  Court  held,  in  a  full  and  well-reasoned 
opinion,  that  the  title  of  a  bona  fide  purchaser  could  not  be  defeated 
by  proof  that  one  of  the  deeds  through  which  he  claimed  title  was 
a  wrongfully  obtained  and  a  wrongfully  recorded  escrow.  The  Court 
rested  its  decision  on  the  fact  that  the  custodian  of  an  escrow  is  the 
agent  of  the  grantor  as  well  as  the  grantee,  and,  if  one  of  two  inno- 
cent persons  must  suffer  by  the  wrongful  act  of  the  agent,  he  who 
employs  an  unfaithful  agent,  and  puts  it  in  his  power  to  do  the  act, 
must  bear  the  loss;  that  the  agent  has  the  power  to  deliver  the  deed, 
and,  if  he  delivers  it  contrary  to  his  instructions,  he  will  be  answer- 
able to  his  principal;  and  it  is  therefore  reasonable  that  the  latter, 
and  not  the  innocent  purchaser,  should  bear  the  loss.  In  Everts  v. 
Agnes,  4  Wis.  343,  the  contrary  was  held.  But  in  the  latter  case  the 
Court  appears  to  have  acted  in  ignorance  of  the  decision  in  the 
former     case,     and    in    ignorance    of    the    equitable    doctrine     upon 


No.  546.  A.       CREATION  OF  LEGAL  ACTS.  593 

which  it  rests,  although  the  former  decision  was  made  six  years  before 
the  latter.  This,  as  it  seems  to  us,  was  an  unfortunate  oversight; 
for  the  former  decision  is  supported  by  reasoning  so  strong,  and,  as 
it  seems  to  us,  so  satisfactory,  we  cannot  resist  the  conviction  that  if 
the  attention  of  the  Court  had  been  called  to  it,  and  the  principles  on 
which  it  rests,  a  different  conclusion  would  have  been  reached ;  and 
the  subsequent  decisions,  which  have  followed  the  lead  of  that,  would 
have  no  existence. 

"But  be  this  as  it  may,  the  authorities  all  agree  that  a  deed  cannot 
be  delivered  directly  to  the  grantee  himself,  or  to  his  agent  or  attor- 
ney, to  be  held  as  an  escrow;  that,  if  such  a  delivery  is  made,  the 
law  will  give  effect  to  the  deed  immediately,  and  according  to  its  terms, 
divested  of  all  oral  conditions.  The  reason  is  obvious.  An  escrow 
is  a  deed  delivered  to  a  stranger,  to  be  delivered  by  him  to  the  grantee 
upon  the  performance  of  some  condition,  or  the  happening  of  some 
contingency,  and  the  deed  takes  effect  only  upon  the  second  delivery. 
Till  then,  the  title  remains  in  the  grantor.  And  if  the  delivery  is  in 
the  first  instance  directly  to  the  grantee,  and  he  retains  the  possession 
of  it,  there  can  be  no  second  delivery,  and  the  deed  must  take  effect 
on  account  of  the  first  delivery,  or  it  can  never  take  eft'ect  at  all.  And 
if  it  takes  effect  at  all,  it  must  be  according  to  its  written  terms.  Oral 
conditions  cannot  be  annexed  to  it.  It  will  therefore  be  seen  that 
a  delivery  to  the  grantee  himself  is  utterly  inconsistent  with  the  idea  of 
an  escrow.  And  it  is  perfectly  v/ell  settled,  by  all  the  authorities, 
ancient  and  modern,  that  an  attempt  to  thus  deliver  a  deed  as  an 
escrow  cannot  be  successful ;  that  in  all  cases  where  such  deliveries 
are  made  the  deeds  take  effect  immediately  and  according  to  their 
terms,  divested  of  all  oral  conditions.  And  it  is  equally  well  settled 
that,  if  the  delivery  is  to  one  who  is  acting  at  the  time  as  an  agent 
or  attorney  of  the  grantee,  the  effect  is  the  same.  .  .  . 

"The  principal  contention  in  the  present  case  is  whether  one  of 
the  deeds  through  which  the  defendants  have  derived  their  title  was 
legally  delivered.  The  deed  is  from  George  E.  Seavey  and  Nathaniel 
H.  Clark  to  Thomas  Boyd  and  Robert  W.  Boyd.  It  is  dated  January 
26,  1878,  was  acknowledged  the  same  day,  and  recorded  July  15,  1878. 
The  plaintiff  claims  that  this  deed  was  delivered  as  an  escrow,  and. 
although  acknowledged  and  recorded,  never  became  operative.  Upon 
the  proofs  in  the  case,  we  do  not  think  such  an  attack  upon  the  de- 
fendants' title  is  permissible.  The  proof  is  that  the  deed  was  made 
and  accepted  in  part  payment  of  a  debt  owing  from  the  grantors  to 
the  grantees,  and  that  it  was  in  fact  delivered  to  one  G.  C.  Bartlette. 
an  attorney  at  law,  who  had  been  employed  by  the  grantees  to  col- 
lect the  debt ;  that  Bartlette  afterwards  sent  the  deed  by  mail  to  the 
grantees,  and  that  they  caused  it  to  be  recorded ;  and  that,  at  the  time 
of  the  defendant's  purchase,  the  deed  had  been  on  record  for  more 
than  eight  years,  its  validity  apparently  uncontested  and  unchallenged. 


594 


PAROL   EVIDENCE   RULE. 


No.  546. 


And  it  Is  admitted  that  the  defendants  are  innocent  purchasers  for  value, 
and,  at  the  time  of  their  purchase,  had  no  notice  of  the  condition  of 
the  title  other  than  that  disclosed  by  the  record.  Under  these  cir- 
cumstances, and  for  the  reasons  already  given,  we  think  the  plaintiff 
is  estopped  to  deny  that  the  deed  was  legally  delivered.  We  rest  our 
decision  upon  the  ground  that  the  deed  was,  in  fact,  delivered  to  the 
grantees'  attorney  as  such,  and  that  such  a  delivery  is  equivalent  to  a 
delivery  to  the  grantee  himself;  and  that,  when  such  a  delivery  is  made,- 
it  is  not  competent  for  the  grantor,  or  those  claiming  under  him  by 
a  subsequent  conveyance,  to  show  by  oral  evidence  that  a  condition 
was  annexed  to  the  delivery,  for  the  nonperformance  of  which  the 
deed  never  became  operative.  It  seems  to  us  that  to  hold  otherwise 
would  render  all  deeds  of  little  value  as  evidence  of  title."^ 


GUARDHOUSE  v.  BLACKBURN    (1866). 
L.  R.  I  P.  &  D.  109. 

The  plaintififs  were  residuary  legatees  under  a  will  of  Mrs.  Hannah 

Jameson,  who  died  on  August  23,  1863,  leaving  a  will  dated  May  30, 

185 1,  and  a  codicil  dated  April  13,   1852.     The  defendants  were 

"**       the    executors.      The    will    charged    the    testatrix'    three    estates 

with  legacies  to  the  amount  of  $1,300. 

The  plaintiffs  admitted  the  due  execution  of  the  will  and  codicil, 
and  the  only  question  raised  by  them  was  as  to  whether  the  words 
"therein  and,"  at  the  end  of  the  codicil,  were  entitled  to  probate.  By 
their  plea  they  denied  that  the  codicil,  as  executed,  expressed  the 
wishes  and  intentions  of  the  deceased ;  and  alleged  that  she,  having^ 
a  mind  to  alter  her  will,  sent  for  William  Carrick,  her  solicitor,  and 
gave  him  instructions  for  a  codicil,  which  he  reduced  into  writing, 
and  which  instructions  were  pleaded;  which,  after  giving  and  revok- 
ing the  legacies  mentioned  in  the  codicil  as  executed,  concluded,  "And 
I  charge  all  the  said  legacies  on  my  personal  estate."  That  the  said 
William  Carrick,  intending  to  prepare  the  said  codicil  for  execution, 
and  to  make  a  few  verbal  alterations  only,  wrote  out  the  paper  pro- 


3 — Compare  the  following  statements: 
Parker,  C.  J.,  in  Somes  v.  Brewer,  2 
Pick.  184,  191  (1824):  "Between  the 
grantor  and  the  grantee  in  such  cases, 
the  technical  differen.ce  between  'void' 
and  'voidable'  is  wholly  immaterial.  What- 
ever may  be  avoided  may  in  good  sense, 
to  this  purpose,  be  called  void.  .  .  .  But 
in  regard  to  the  consequences  to  third 
persons  the  distinction  is  highly  important, 
because  nothing  can  be  founded  upon  a 
deed  which  is  absolutely  void;  whereas 
from  those  which  are  only  voidable  fair 
titles    may    flow." 


Bennett,  J.,  in  Smith  v.  South  Royal- 
ton  Bank,  32  Vt.  341 :  "The  deed  not 
having  been  delivered,  it  was  a  nullity 
and  void,  or,  more  properly  speaking, 
never  existed;  .  .  .  there  is  a  radical  dis- 
tinction, as  it  respects  the  rights  of  a 
bona  fide  purchaser  or  assignee  without 
notice,  between  a  void  and  a  voidable 
instrument:  ...  let  the  principle  be  as 
it  may  in  regard  to  commercial  paper, 
no  question  can  be  made  as  to  a  void 
deed." 

Compare     the     authorities    cited    in     W.» 
§  2420,  and  No.   551,  post. 


No.  547.  A.       CREATION  OF  LEGAL  ACTS.  595 

pounded,  but  that  he  inadvertently,  or  by  mistake,  and  without  any 
instructions  whatever  to  that  effect  from  the  deceased,  wrote  the 
words,  "And  I  direct  all  the  legacies  therein  and  herein  given  (and 
not  revoked)  to  be  paid  out  of  my  personal  estate,"  in  lieu  of  "and 
I  charge  all  the  said  legacies  on  my  personal  estate."  That  the  effect 
of  the  said  words,  "therein  and,"  which  had  the  effect  of  discharging 
the  estate  of  Scales  of  legacies  to  the  amount  of  £500,  and  the  estate 
of  Stainton  of  the  payment  of  legacies  to  the  amount  of  £800,  was 
•not  observed  by  the  said  William  Carrick,  nor  by  the  deceased,  when 
she  executed  the  codicil,  and  that  the  said  paper  writing,  containing 
the  words  "therein  and,"  was  not  the  codicil  of  the  said  deceased. 
William  Carrick  said  in  examination :  He  took  the  instructions  from 
the  testatrix  by  word  of  mouth,  at  her  residence,  and  wrote  them  down 
in  her  presence  on  the  draft.  The  draft  was  intended  to  be  copied  for 
execution.  From  ,the  draft  he  prepared  in  her  presence  a  copy  for 
execution  for  her,  varying  in  a  few  particulars  from  the  draft,  but 
not  in  substance,  until  he  came  to  the  words  in  dispute.  He  read  over 
the  draft  to  her,  and  asked  if  it  was  as  she  intended  it.  She  expressed 
herself  satisfied  with  it.  He  read  the  copy  over  to  her,  so  that  she 
could  understand  it.  She  said  nothing,  but  proceeded  to  execute  it. 
He  retained  the  codicil  in  his  custody  until  the  deceased's  death.  She 
gave  him  no  instructions  to  discharge  the  real  estates  of  Scales  and 
Stainton  from  the  legacies  of  £1,300;  and  he  had  no  instructions  from 
her  to  insert  the  words  "therein  and."  He  inserted  them  by  inad- 
vertence. Her  attention  was  not  particularly  directed  to  them,  and  his 
attention  was  first  directed  to  them  after  her  death. 

Sir  J.  P.  Wilde:  "The  plaintiffs  have  cited  the  defendants  to 
bring  in  the  probate  of  the  will  and  codicil  of  Mrs.  Hannah  Jameson, 
that  it  may  be  cancelled.  The  defendants  have  propounded  these  papers 
for  probate ;  and  the  plaintiffs  contend  that  the  words  'therein  and' 
ought  to  be  expunged  from  the  codicil  before  probate  is  granted  thereof. 
The  effect  of  these  words,  which  undoubtedly  appear  in  the  codicil, 
and  were  there,  it  is  admitted,  when  it  was  executed,  is  to  discharge 
certain  portions  of  the  real  estate  from  pecuniary  legacies  of  con- 
siderable amount,  with  which  they  were  charged  by  the  will.  The 
ground  upon  which  the  Court  is  asked  to  expunge  them  is,  that  they 
were  inserted  by  the  attorney  who  drew  the  codicil  by  mistake,  and 
without  instructions.  This  is  proven  to  be  the  fact  (if  the  evidence 
is  admissible,  and  can  be  relied  upon)  by  the  oath  of  the  attorney,  and 
by  a  paper  which  he  swears  to  have  been  the  rough  draft  of  the  codicil 
made  by  him  in  the  presence  of  the  testatrix,  and  from  her  verbal 
directions.  ...  I  must  premise  that  the  Wills  Act  has  worked  a  great 
change  in  the  old  testamentary  law.  as  administered  by  the  Ecclesiasti- 
cal Courts  on  this  head.  Under  that  law.  a  testamentary  paper  needed 
not  to  have  been  signed,  provided  it  was  in  the  testator's  writing: 
and  all  papers  of  a  testamentary  purport,  if  in  his  writing,  commanded 


596 


PAROL    EVIDENCE   RULE. 


No.  547. 


the  equal  attention  of  the  court,  save  so  far  as  one,  from  its  date  or 
form,  might  be  manifestly  intended  to  supersede  or  revoke  another,  as 
a  will  superseding  instructions,  or  a  subsequent  will  revoking  a  former. 
.  .  .  But  the  words  of  the  Wills  Act,  'No  will  shall  be  valid'  unless 
executed  in  a  certain  manner,  obviously  exclude  the  probate  of  un- 
executed instructions  altogether,  and  have  rendered  it  no  longer  pos- 
sible to  the  Court  of  Probate  to  treat  them  as  part  of  a  will.  .  .  . 
"But  then  comes  the  question,  if  the  Court  cannot  now,  as  it  could 
before  the  statute,  give  effect  to  any  provision  omitted  by  mistake 
from  the  will,  does  it  still  retain  the  power  to. strike  out  any  portion 
of  the  contents  of  a  duly  executed  paper  on  the  ground  that,  although 
such  portion  formed  part  of  the  paper  when  executed  by  the  testator, 
it  was  inserted  or  retained  by  mistake  or  inadvertence  ?  This  is  what 
is  asked  on  the  present  occasion.  Against  this  being  done,  it  was 
strongly  argued  that  the  court  has  no  such  power.  The  argument  was 
put  on  several  grounds,  and,  amongst  others,  upon  the  ground  that 
parol  evidence  was  inadmissible  upon  the  question.  .  .  .  The  truth  is, 
that  the  rules  excluding  parol  evidence  have  no  place  in  any  inquiry 
in  which  the  court  has  not  got  before  it  some  ascertained  paper  beyond 
question  binding  and  of  full  effect.  Nor  indeed  are  these  rules  pressed 
in  the  courts  either  of  law  or  equity  beyond  this  mark.  For  if  the 
written  document  is  alleged  to  have  been  signed  under  condition  that 
it  should  not  operate  except  in  certain  events,  parol  evidence  has  been 
admitted  at  law  to  prove  such  condition  and  the  breach  of  it:  see  Pym 
v.  Campbell,  6  E.  &  B.  370.  Or  if  (going  further  still)  some  plain 
and  palpable  error  has  crept  into  the  written  document,  equity  for- 
merly, and  the  courts  of  common  law  now,  sanction  the  admission  of 
evidence  to  expose  the  error:  see  the  case  of  Wake  v.  Harrop,  6  H. 
&  N.  768.  .  .  .  Supposing,  then,  parol  evidence  to  be  admissible  in 
such  a  case  as  the  present,  the  question  recurs,  to  what  extent  is  it 
still  open  to  the  court  since  the  statute,  to  act  upon  such  evidence, 
for  the  purpose  of  rejecting  the  whole  or  expunging  any  portion  of 
the  written  testament  to  which  the  testator  has  duly  affixed  his  name? 
.  .  .  After  much  consideration  the  following  propositions  commend 
themselves  to  the  Court  as  rules  which,  since  the  statute,  ought  to 
govern  its  action  in  respect  of  a  duly  executed  paper:  First,  that  be- 
fore a  paper  so  executed  is  entitled  to  probate,  the  court  must  be 
satisfied  that  the  testator  knew  and  approved  of  the  contents  at  the 
time  he  signed  it.  Secondly,  that  except  in  certain  cases  where  sus- 
picion attaches  to  the  document,  the  fact  of  the  testator's  execution 
is  sufficient  proof  that  he  knew  and  approved  the  contents.  Thirdly, 
that  although  the  testator  knew  and  approved  the  contents,  the  paper 
may  still  be  rejected,  on  proof  establishing,  beyond  all  possibility  of 
mistake,  that  he  did  not  intend  the  paper  to  operate  as  a  will.  Fourthly, 
that  although  the  testator  did  not  know  and  approve  the  contents,  the 
paper  may  be  refused  probate,  if  it  be  proved  that  any  fraud  has  been 


No.  548.  A.   CREATION  OF  LEGAL  ACTS.  597 

purposely  practised  on  the  testator  in  obtaining  his  execution  thereof. 
Fifthly,  that,  subject  to  this  last  preceding  proposition,  the  fact  that 
the  will  has  been  duly  read  over  to  a  capable  testator  on  the  occasion 
of  its  execution,  or  that  its  contents  have  been  brought  to  his  notice 
in  any  other  way,  should,  when  coupled  with  his  execution  thereof, 
be  held  conclusive  evidence  that  he  approved  as  well  as  he  knew  the 
contents  thereof.  Sixthly,  that  the  above  rules  apply  equally  to  a  por- 
tion of  the  will  as  to  the  whole.  .  .  . 

"It  remains  to  say  a  few  words  on  the  fifth  [proposition].  It  is 
here  that  the  right  to  derogate  from  the  force  of  an  executed  paper 
approaches  and  receives  its  limit.  And  it  is  obvious  enough,  that  if 
the  court  should  allow  itself  to  pass  beyond  proof  that  the  contents 
of  any  such  paper  were  read  or  otherwise  made  known  to  the  testator, 
and  suffer  an  inquiry  by  the  oath  of  the  attorney  or  others  as  to  what 
the  testator  really  wished  or  intended,  the  authenticity  of  a  will  would 
no  longer  repose  on  the  ceremony  of  execution  exacted  by  the  statute, 
but  would  be  set  at  large  in  the  wide  field  of  parol  conflict,  and  con- 
fided to  the  mercies  of  memory.  The  security  intended  by  the  statute 
would  thus  perish  at  the  hands  of  the  court.  ...  In  the  present  case, 
the  codicil  was  proved  to  have  been  read  over  to  the  testator  before 
the  execution  thereof ;  she  duly  executed  the  same ;  and  the  Court 
conceives  it  to  be  beyond  its  functions  or  powers  to  substitute  the  oath 
of  the  attorney  who  prepared  it,  fortified  by  his  notes  of  the  testator's 
instructions,  for  the  written  provisions  contained  in  a  paper  so  exe- 
cuted. The  probate  will,  therefore,  be  delivered  out  to  the  olaintiffs  in 
its  present  form."^ 


J".       Voidable  Acts. 

STATE  V.  CASS    (1889). 

52  N.  J.  L.  77. 

Certiorari  upon  a  judgment  for  the  plaintiff  Catherine  Cass,  in 
an  action  against  S.  Cummings  to  recover  $125,  the  price  paid  to  him 

for  a  horse,  sold  on  fraudulent  representations  as  to  his  speed. 

Mr.  Cass,  in  the  presence  of  his  wife,  the  plaintiff,  stated  to 
the  defendant  that  they  desired  a  horse  that  could  make  the  distance 
between  Rockland  and  Orange  Valley,  between  seven  and  eight  miles, 
in  one  hour  or  one  and  a  half  hours,  and  stated  that  if  the  horse  could 
not  do  that  they  didn't  want  to  buy  him;  to  which  the  defendant  re- 
plied that  the  horse  could  easily  do  that.  There  was  evidence  that 
the  horse  was  not  able  to  travel  seven  or  eight  miles  in  one  hour  or 
in  one  hour  and  a  half,  and  was  not  fit  for  the  purpose  for  which  he 
had  been  bought.  It  appeared  on  the  cross-examination  of  the  plaintiff 
that  at  the  time  of  the  sale  a  written  warranty  of  the  horse  had  been 
given    in    the    following    form:      "Newark,    April    6th,    1887.      To   one 

J — Compare  the  authorities  cited  in  W.,   §  2421. 


598  PAROL   EVIDENCE   RULE.  No.  548. 

gray  horse  Charley,  which  I  warrant  to  be  sound  and  kind  with  the 
exception  of  straining  of  muscle  of  left  hind  leg."  The  counsel  for 
defendant  thereupon  moved  that  all  evidence  as  to  representations  made 
by  the  defendant,  other  than  those  contained  in  the  written  warranty, 
be  stricken  out,  on  the  ground  that  the  agreement  of  the  parties  having 
been  reduced  to  writing,  such  writing  could  not  be  varied  or  enlarged 
by  parol  evidence.  The  Court  denied  the  motion,  and  allowed  an 
exception. 

Reed,  J.:  "[The  parol  evidence  rule]  is  not  infringed  by  the  ad- 
mission of  parol  testimony  which  is  not  intended  as  a  substitution  for 
or  an  addition  to  a  written  contract,  but  which  goes  to  show  that  the 
instrument  is  void  or  voidable,  and  that  it  never  had  any  legal  exist- 
ence or  binding  force,  either  by  reason  of  fraud,  or  for  want  of  due 
execution  and  delivery,  or  for  the  illegality  of  the  subject-matter  of 
the  contract.  Nor  is  the  admission  of  parol  evidence  for  the  purpose 
of  avoiding  a  written  contract  on  the  ground  of  fraud,  confined  to  such 
testimony  as  goes  to  show  that  a  party  was  lured  to  make  a  contract 
other  than  that  intended,  as  by  the  substitution  of  one  contract  for 
another  by  trickery,  or  by  misreading  a  contract  to  an  illiterate  per- 
son. Farol  testimony  may  be  admitted  to  show  that  the  execution  of 
a  written  contract  was  brought  about  by  a  fraudulent  representation. 
.  .  .  The  elements  essential  to  constitute  such  fraudulent  representa- 
tion will  be  considered  later,  and  it  is  now  necessary  only  to  remark 
that  such  evidence  as  will  lay  a  foundation  for  an  action  of  deceit  or 
a  ground  for  the  recission  of  the  contract,  is  always  receivable,  al- 
though it  consists  of  oral  representations.  This  point  was  strenuously 
denied  in  the  arguments  submitted  by  the  counsel  for  the  defendant. 
His  contention  was,  that  fraud  in  the  execution  of  the  instrument 
could  be  shown,  but  that  oral  representations  going  to  a  failure  of  con- 
sideration only  could  not.  The  seeming  strength  of  his  contention  lay 
in  the  likeness  between  the  written  and  the  oral  facts  in  the  present 
case,  both  concerning  the  quality  of  the  animal  sold.  The  written  war- 
ranty applied  to  the  soundness  and  kindness  of  the  horse,  and  the  oral 
testimony  to  the  speed  of  the  animal.  The  danger  of  permitting  parol 
declarations  to  be  proved,  which  were  so  nearly  related  to  the  sub- 
ject-matter of  the  written  warranty,  was  strongly  pressed  as  an  evil 
which  the  rule  of  evidence  already  stated  seemed  especially  designed 
to  prevent.  But  the  distinction  between  such  representations  as  add 
to  the  contract  and  such  as  avoid  the  contract,  because  of  their  fraudu- 
lent character,  is  too  firmly  established  in  our  jurisprudence  to  be  now 
shaken.  As  an  additional  warranty,  that  is,  an  addition  to  the  con- 
tract, the  present  representations  were  clearly  inadmissible.  So  soon, 
however,  as  they  displayed  such  features  as  went  to  show  that  through 
them  the  contract  had  been  fraudulently  induced,  and  so  was  unen- 
forceable for  that  reason,  at  the  election  of  the  defrauded  party,  the 
rule   excluding  parol  testimony  to   enlarge   a   written   contract   became 


No.  549.  A.   CREATION  OF  LEGAL  ACTS.  599 

inoperative.  It  is  of  course  obvious,  that  the  fact  that  there  was  a 
written  warranty  in  respect  to  the  soundness  and  kindness  of  the  animal 
would  be  a  forcible  argument  that  no  other  representations  as  to  qual- 
ity were  made.  The  existence  of  the  written  warranty  would  be  use- 
ful in  determining  the  probability  of  the  truth  of  the  counter  state- 
ments of  the  parties  as  to  the  existence  or  non-existence  of  the  parol 
declaration.  But  when  the  fraudulent  affirmations  are  once  proven 
to  exist,  the  written  contract  becomes  unimportant.  This  seems  to 
be  an  elementary  principle  of  the  law  of  evidence.  The  right  to  prove 
fraud,  in  whatever  shape  it  may  exist,  to  avoid  written  contracts,  has 
been  so  uniformly  recognized  that  it  can  hardly  be  said  to  have  been 
the  subject  of  serious  judicial  discussion.  ...  I  conclude,  therefore, 
that  if  the  evidence  established  fraudulent  conduct  on  the  part  of  the 
defendant,  the  testimony  was  properly  admitted." 


NEWTON  V.  TOLLES    (i 
66  N.  H.  136,  ip  Atl.  iop2. 

Bill  in  equity,  filed  October  20,  1886,  for  the  recission  of  a  contract 
for  the  purchase  of  a  farm  and  other  property,  and  for  the  return  of 
money  paid  as  a  part  of  the  purchase-money.  Facts  found  by 
the  Court.  The  defendant,  Sophia  A.  Tolles,  employed  R.,  a 
real  estate  agent  in  Nashua,  to  sell  her  farm.  In  May,  1886,  Newton, 
.••.eek-ing  to  buy  a  farm,  applied  to  R.,  who  informed  him  of  the  Tolles 
farm,  told  him  it  contained  two  hundred  acres,  took  him  to  see  it, 
and  there  pointed  out  to  him  such  of  the  corners  and  boundaries  as 
he  knew;  but  he  did  not  know,  or  undertake  to  point  out,  all  of  them. 
Afterwards  R.,  as  agent  of  Tolles,  and  Newton  executed  an  agreement 
by  which  Tolles  agreed  to  sell,  and  Newton  to  buy,  the  "Tolles  farm" 
for  $5,400,  to  be  paid,  $200  on  the  execution  of  the  agreement,  $1,000 
on  the  delivery,  on  or  before  June  i,  1886,  of  a  bond  for  a  deed, 
$1,000  on  or  before  July  10,  1886,  and  $3,200  on  the  delivery, 
on  or  before  October  20,  1886,  of  a  good  and  sufficient  deed.  "Said 
Newton  to  have  all  the  stock,  tools,  hay,  grain,  etc."  On  the  margin 
of  the  agreement,  "Farm  contains  about  200  acres"  was  written.  New- 
ton paid  $200  May  15.  Tolles  executed  and  delivered  to  Newton  a 
bond,  conditioned  to  convey  to  him  "a  certain  lot  or  parcel  of  land  situ- 
ated in  Nashua,"  and  particularly  described  by  metes  and  bounds, 
meaning  and  intending  to  convey  all  the  homestead  farm,  containing 
about  two  hundred  acres,  as  by  deed  of  heirs  of  Horace  C.  Tolles  to 
me.  and  other  land  and  right  in  said  homestead  farm,"  upon  Newton's 
payment  of  $1,000  on   the  delivery  of  the   bond,  $1,000  on  or  before 

1 — Compare  the  authorities  cited  in  W.,   §.1423;   and  also  the  doctrine  of  No.   560, 
post. 


600  PAROL   EVIDENCE   RULE.  No.  549. 

July    10,   i886,   and  $3,200  on  the  delivery,  on  or  before   October  20, 
1886,  of  a  good  and  sufficient  deed.  .  .  . 

Prior  to  1879  the  Tolles  farm  comprised  about  two  hundred  and 
three  acres,  of  which  the  defendant  and  her  husband  owned  a  part 
in  common,  and  each  a  part  in  severalty.  In  that  year  the  heirs  of 
Horace  C,  then  deceased,  conveyed  a  parcel  of  about  twenty-five  acres 
to  Xenophon  Tolles,  and  all  their  interest  in  the  rest  of  the  farm  to 
the  defendant.  In  January,  1886,  the  defendant  sold  about  eighteen 
acres  to  C,  who  sold  to  Roby.  A  parcel  of  about  twenty-five  acres, 
called  the  "Salmon  Brook  meadow,"  was  half  a  mile  distant  from  and 
had  no  connection  with  the  rest  of  the  farm  except  in  its  use  as  a 
part  of  it.  These  parcels  were  not  shown  to  Newton  by  R.,  and  are 
not  covered  by  the  particular  description  given  in  the  bond.  Newton, 
at  the  time  of  the  bargain,  did  not  understand  that  they  were  included 
in  his  purchase;  but  he  understood  he  was  buying  the  Tolles  farm, 
and  that  it  contained  two  hundred  acres.  The  defendant  did  not  in- 
tend to  convey,  nor  understand  that  she  agreed  to  convey,  the  three 
parcels,  or  any  one  of  them;  but  she  understood  and  believed  that  the 
farm  as  described  in  the  bond  contained  about  two  hundred  acres.  It 
in  fact  contains  only  one  hundred  and  thirty-five  acres. 

In  June,  1886,  Newton  discovered  that  Tolles  owned  the  Salmon 
Brooke  meadow  ,and  learned  of  its  connection  with  the  farm.  He 
thereupon  claimed  possession  of  it,  and  that  it  was  included  in  the 
bargain,  but  his  claim  was  denied.  He  refused  to  pay  the  installment 
due  July  10,  and  August  21  Tolles  brought  a  suit  at  law  to  recover  it, 
which  is  the  second  of  the  above  named  actions.  About  the  first  of 
August,  Newton  found,  by  a  survey,  that  the  farm  as  described  in  the 
bond  contains  only  one  hundred  and  thirty-five  acres.  October  20, 
1886,  Tolles  tendered  to  Newton  a  warranty  deed  of  the  premises  of 
which  he  is  in  possession,  and  demanded  payment  of  the  balance  of 
the  purchase-money.  Newton  refused  to  accept  the  deed,  and  on  the 
same  day  filed  his  bill,  in  which  he  offers  to  restore  the  real  and  per- 
sonal property  to  the  defendant,  give  up  and  cancel  the  bond,  and  to 
account  for  the  rents  and  profits  while  he  has  been  in  possession.  .  .  . 
Carpenter,  J.:  "There  was  a  mutual  mistake  in  the  quantity  of 
land.  The  defendant  understood  she  was  selling,  and  the  plaintiff 
that  he  was  buying,  a  farm  of  two  hundred  acres.  It  in  fact  con- 
tains only  one  hundred  and  thirty-five  acres.  The  defendant,  believ- 
ing that  the  farm  contained  two  hundred  acres,  informed  the  plaintiff 
that  it  did  contain  that  number.  The  plaintiff  relied  on  her  state- 
ment. Under  the  influence  of  the  error  common  to  both  parties  the 
transaction  was  consummated.  The  mistake  was  one  of  fact,  in  a 
material  point  affecting  the  value  of  the  property.  Its  prejudicial 
consequences  to  the  plaintiff  are  the  same  as  if  the  defendant's  state- 
ment had  been  designedly  fraudulent.  ...  A  material  mistake  in  the 
quantity  does  not,  in  its  effect  upon  the  equitable  rights  of  the  parties. 


No.  550.  A.   CREATION  OF  LEGAL  ACTS.  601 

differ  from  a  like  mistake  in  the  character,  situation,  or  title  of  the 
bargained  property.  It  is  equivalent  to  a  mistake  in  the  existence  of 
a  material  part  of  the  subject  of  the  contract.  The  case  is  as  if,  before 
the  contract  was  executed  and  without  the  knowledge  of  either  party, 
a  parcel  containing  sixty-five  acres  of  the  two  hundred  contracted  for 
had  sunk  in  the  sea.  The  error  is  as  injurious  to  the  plaintiff  as  if 
two  hundred  acres  were  comprised  in  the  stated  boundaries  and  the  de- 
fendant had  no  title  to  a  parcel  of  sixty-five  acres,  or  as  if  she  had 
title  to  only  one  hundred  and  thirty-five  two-hundredths  of  the  whole 
in  common  with  a  stranger.  The  defendant  could  not  sustain  a  bill 
to  compel  a  specific  performance  of  the  contract  by  the  plaintiff,  be- 
cause it  would  be  inequitable.  The  party  against  whom  a  contract, 
made  under  a  mutual  mistake  of  material  facts,  will  not  be  specifically 
enforced,  is  in  general  entitled  to  rescind.  If  there  are  exceptions  to 
the  rule,  this  case  does  not  fall  within  them.  It  is  inequitable  that  the 
defendant,  by  reason  of  her  negligent  and  erroneous,  though  not 
fraudulent,  representation,  should  make  a  profit  of  the  sum  at  which 
the  parties  valued  sixty-five  acres  of  land,  and  that  the  plaintiff  with- 
out fault  on  his  part  should  lose  that  sum.  Equity  will  prevent  such  a 
result  by  rescinding  the  contract  or  decreeing  a  specific  performance 
with  compensation  in  behalf  of  the  injured  party,  at  his  election,  and 
by  refusing  specific  performance  on  the  application  of  the  other  party." 


FAIRBANKS  v.  SNOW   (1887). 
145  Mass.  153,  13  N.  E.  596. 

Holmes,  J. :  "This  is  an  action  upon  a  promissory  note  made  by 
the  defendant  and  her  husband  to  the  order  of  the  plaintiff.  The  de- 
fendant alleges  that  her  signature  was  obtained  by  duress  and 
ooU  threats  upon  the  part  of  her  husband.  The  judge  below  found 
for  the  plaintiff,  on  the  ground,  it  would  rather  seem,  that,  whether 
there  was  duress  or  not,  the  defendant  had  ratified  the  note,  which 
there  seems  to  have  been  evidence  tending  to  prove.  But  as  this  may 
not  be  quite  clear,  we  proceed  to  consider  the  only  exception  taken  by 
the  defendant.  The  judge  refused  to  rule  that,  if  the  defendant  signed 
the  note  under  duress,  it  was  immaterial  whether  the  plaintiff  knew, 
when  he  received  the  note,  that  it  was  so  signed.  The  exception  is 
to  this  refusal. 

"No  doubt,  if  the  defendant's  hand  had  been  forcibly  taken  and 
compelled  to  hold  the  pen  and  write  her  name,  and  the  note  had  been 
carried  off  and  delivered,  the  signature  and  delivery  would  not  have 
been  her  acts;  and  if  the  signature  and  delivery  had  not  been  her 
acts,  for  whatever  reason,  no  contract  woukl  have  been  made,  whether 
the  plaintiff  knew  the  facts  or  not.  There  sometimes  still  is  shown 
an  inclination  to  put  all  cases  of  duress  upon  this  ground.     Barry  v. 


602  PAROL   EVIDENCE   RULE.  No.  550. 

Equitable  Life  Assurance  Society  (59  N.  Y.  587,  591).  But  duress, 
like  fraud,  rarely,  if  ever,  becomes  material  as  such,  except  on  the 
footing  that  a  contract  or  conveyance  has  been  made  which  the  party 
wishes  to  avoid.  It  is  well  settled  that  where,  as  usual,  the  so-called 
duress  consists  only  of  threats,  the  contract  is  only  voidable.  .  .  . 
This  rule  necessarily  excludes  from  the  common  law  the  often  recur- 
ring notion  just  referred  to,  and  much  debated  by  the  civilians,  that 
an  act  done  under  compulsion  is  not  an  act  in  a  legal  sense.  Tamen 
coactiis  volui:    D.  4.  2.  21,  §  5  (see  i  Windscheid,  Pandekten,  §  80). 

"Again,  the  ground  upon  which  a  contract  is  voidable  for  duress 
is  the  same  as  in  the  case  of  fraud;  and  is,  that,  whether  it  springs 
from  a  fear  or  belief,  the  party  has  been  subjected  to  an  improper 
motive  for  action.  But  if  duress  and  fraud  are  so  far  alike,  there 
seems  to  be  no  sufficient  reason  why  the  limits  of  their  operation  should 
be  different.  A  party  to  a  contract  has  no  concern  with  the  motives 
of  the  other  party  for  making  it,  if  he  neither  knows  them  nor  is 
responsible  for  their  existence.  It  is  plain  that  the  unknown  fraud  of 
a  stranger  would  not  prevent  the  plaintiff  from  holding  the  defendant. 
.  .  .  The  authorities  with  regard  to  duress,  however,  are  not  quite 
so  clear.  It  is  said  in  Thoroughgood's  case,  2  Rep.  9,  that,  'if  a 
stranger  menace  A.  to  make  a  deed  to  B.,  A.  shall  avoid  the  deed 
which  he  made  by  such  threats,  as  well  as  if  B.  himself  had  threatened 
him,  as  it  is  adjudged  45  E.  3.  6.'  .  .  .  But  in  Y.  B.  43  E.  III.  6,  pi.  15, 
which  we  suppose  to  be  the  case  referred  to,  it  was  alleged  that  the 
defendant  was  imprisoned  by  the  procurement  of  the  plaintiff.  And 
we  know  of  no  distinct  adjudication  of  binding  authority  that  mere 
threats  by  a  stranger,  made  without  knowledge  or  privity  of  the  party, 
are  good  ground  for  avoiding  a  contract  induced  by  them.  .  .  .  On 
the  case  as  it  presented  to  us,  we  are  of  opinion  that  the  ruling  re- 
quested was  wrong  upon  principle  and  authority." 


Nature  of  Voidable  Acts;  Motive,  as  the  Ground  of  Voida- 
bility.^ "The  voidness  of  an  act  (or,  more  correctly,  of  conduct 
which  has  never  become  a  legal  act)  is  seen  to  be  a  quality 
purely  relative,  i.  e.  an  instrument  may  be  void,  as  against 
the  grantee  or  payee,  yet  valid  as  against  the  indorsee  or  the  grantee's 
grantee.  It  may  even  be  valid  as  against  one  of  two  grantees,  though 
void  as  against  the  other,  or  valid  for  one  clause  and  void  for  the 
next, — consequences  thoroughly  accepted  in  the  modern  judicial  rul- 
ings. The  conception,  so  often  met  with,  that  voidness,  when  con- 
cealed for  one  person,  necessarily  involves  voidness  in  the  absolute 
sense,  i.  e.  for  every  other  person, ^  is  therefore  unfounded  and  un- 
practical, since  the  test  of  reasonable  consequences  will  differ  for 
different  persons  affected  by  the  conduct. 

X — Quoted    from   W.,    §§2413,    2423.  2 — As    seen    in    the    quotations    in    the 

note    to    No.    546,    ante. 


No.  551.  A.       CREATION  OF  LEGAL  ACTS.  603 

"As  a  part  of  the  same  erroneous  conception,  the  relative  quality 
of  an  act,  as  valid  for  one  person  while  invalid  for  another,  has  been 
associated  exclusively  with  the  term  voidable.  But  this  is  the  con- 
founding of  two  separate  ideas  in  the  same  term.  A  voidable  act  is 
one  which  may  be  annulled  at  the  actor's  option,  but  is  valid  till 
annulled ;  while  a  void  act  is  of  itself  null,  and  requires  no  further 
act  exercising  an  option, — the  practical  differences  being,  first,  that 
the  voidable  act  remains  valid  if  the  option  is  never  exercised,  and, 
secondly,  that  its  invalidity  must  be  pleaded  affirmatively.  Now  the 
relative  quality — i.  e.  of  affecting  one  person  though  not  another — 
is  concededly  true  of  voidable  acts.  But  that  it  is  not  their  inherent 
mark  may  be  perceived  from  two  circumstances ;  on  the  one  hand, 
that  a  voidable  act  may  continue  to  be  voidable  in  the  hands  of  a 
third  person,  so  far  as  he  is  a  transferee  with  notice  {i.  e.  the  void- 
ability, like  the  voidness,  may  absolutely  affect  the  act  under  certain 
circumstances),  and,  on  the  other  hand,  that  some  acts  ordinarily 
voidable  are  by  modern  doctrine  {e.  g.  the  contracts  of  a  lunatic) 
valid  for  even  the  immediate  promisee,  if  he  did  not  and  could  not 
know  of  the  avoiding  circumstance. 

"The  result  is,  then,  that  the  distinction  between  relative  and 
absolute  validity  must  be  separated  from  the  idea  of  voidness  and 
voidableness.  The  only  place  for  the  former  contrast  is  between 
acts  permitted  and  acts  prohibited  by  public  policy. 

"The  inquiry,  therefore,  is.  What  is  the  distinction  between  these 
elements,  the  lack  of  which  leaves  the  act  void,  and  those  other  ele- 
ments which  merely  make  the  act  voidable  ?  These  other  elements 
are  all  reducible  finally  to  a  single  consideration,  namely,  that  of 
motive, — i.  e.  the  relation  between  the  actor's  state  of  mind  and  some 
fact  external  to  himself  and  his  act.  This  consideration  of  Motive 
falls  under  three  general  heads : 

"i.  When  the  fact  creating  the  motive  is  somewhere  mentioned 
in  the  terms  of  the  act,  it  is  commonly  spoken  of  as  a  Condition. 
Conditions  may  be  established  by  express  stipulation  in  the  act,  or 
by  implication  of  law.  Of  the  latter  sort  may  be,  for  example,  in 
contracts,  a  warranty  of  a  horse's  pedigree ;  in  deeds,  a  description 
of  land  as  containing  specified  buildings;  in  wills,  a  recital  (incor- 
rectly) of  the  death  of  an  elder  son  as  the  reason  for  devising  to  a 
younger  one. 

"2.  When  the  fact  creating  the  motive  is  not  mentioned  in  the 
terms  of  the  act,  the  recognized  grounds  of  avoidance  are  of  two 
general  sorts.  Error  and  Compulsion,  (o)  Error  may  exist  either  by 
the  inducement  of  the  second  party,  or  without  it.  (i)  Error  in- 
duced by  the  second  party  may  involve  a  fact  misrepresented  fraudu- 
lently or  innocently.  In  both  cases,  the  fact  must  have  been  ma- 
terial as  a  motive  to  induce  the  act ;  but  the  right  to  avoid  is  much 
narrower   in  scope   in   the   latter  case  than   in   the   former.     In  both 


604  PAROL   EVIDENCE   RULE.  No.  551» 

cases,  however,  the  avoidance  is  due  to  a  fact  external  to  the  legal 
act  itself,  and  this  marks  the  distinction  betw^een  void  and  voidable 
acts.  (2)  Error  not  induced  by  the  second  party  will  involve  either 
mutual  or  individual  mistake.  Where  the  mistake  is  mutual — for 
example,  where  the  parties  agree  to  buy  and  sell  a  specified  lot  of 
land,  supposing  it  to  contain  forty  acres,  and  in  fact  it  contains 
thirty-four  acres  only,  but  the  price  is  made  proportionate  to  forty 
acres,  and  the  terms  of  the  deed  do  not  mention  the  area — ,  the  ques- 
tion is  whether  this  mistaken  mutual  motive  will  authorize  either  the 
total  avoidance  of  the  act,  or  at  least  its  judicial  reformation  on 
equitable  lines.  This  is  one  of  the  chief  sources  of  controversy  in 
the  so-called  doctrine  of  mutual  mistake;  and  it  has  been  already 
noticed  that  this  is  entirely  distinct  in  its  problem  from  the  doctrines 
of  mutual  mistakes  as  to  the  actual  contents  of  a  document  signed. 
So,  too,  a  mutual  erroneous  assumption  as  to  the  legal  effect  of  words 
intentionally  used  belongs  under  the  present  head.  The  practical 
problem  here  is  a  difficult  one,  and  the  rules  are  by  no  means  uni- 
form in  acceptance;  but  in  nature  it  is  a  problem  common  to  all  legal 
acts,  whether  oral  or  written.  Where  the  mistake  is  individual  only 
— for  example,  in  the  above  case,  if  one  party  alone  entertained  the 
mistake  as  to  area — ,  it  is  generally  conceded  that  the  act  cannot  be 
avoided,  (b)  Compulsion,  or  duress,  so  far  as  it  means  a  coercion 
to  choose  between  the  signing  of  a  document  and  the  suffering  of 
some  harm,  whether  corporal  or  otherwise,  signifies  that  the  act  has 
been  consummated  because  of  the  motive  of  fear  of  that  harm.  Since 
motive  alone  is  thus  involved,  it  follows  that  compulsion,  like  fraud, 
merely  makes  the  act  voidable.  In  fact,  then,  compulsion  is  always 
of  this  nature,  and  there  is  no  clear  distinction  of  principle  between 
'equitable'  and  'legal'  duress  so-called.  The  only  conceivable  case 
in  which  duress  could  go  to  deny  the  very  existence  of  the  act  is 
that  of  the  physical  seizure  of  the  person's  hand,  and  a  forcible  move- 
ment of  his  pen,  by  another  person,  for  there  the  first  person's  volition 
is  lacking. 

"3.  A  peculiar  variety  of  the  foregoing  doctrine  is  found  in  the 
avoidability  of  acts  of  infants  and  lunatics.  Here  a  rule  of  thumb  is 
adopted,  by  which  the  person's  age  or  disease  of  itself  serves  virtually 
to  raise  a  fixed  presumption  of  fraud  or  compulsion,  and  thus  to 
create  the  option  to  avoid,  regardless  of  any  inquiry  whether  there 
was  in  the  individual  case  deceit  or  duress.  The  general  probability 
of  it  is  regarded  as  sufficient.  At  the  same  time  there  has  always 
been  a  tendency,  in  one  or  another  court,  to  break  from  the  fixed 
rule,  and  to  treat  such  person's  contracts,  especially  after  performance 
on  one  side,  as  voidable  only  when  in  fact  there  was  in  the  par- 
ticular case  fraud  or  duress.  It  may  be  added  that  the  earlier  doc- 
trine that  a  lunatic's  contracts  are  void,  not  merely  voidable,  is 
referable  to   the  natural   opportunity   for  doubting  whether  his   mental 


No.  552.  A.   CREATION  OF  LEGAL  ACTS.  605 

condition,  as  respects  legal  acts,  is  that  of  total  absence  of  real  voli- 
tion or  merely  of  an  unintelligent  apprehension  of  the  proper  motives 
of  his  conduct ;  for,  if  the  former  be  the  case,  it  is  logical  to  treat 
his  act  as  void. — The  voidness  of  a  married  woman's  acts  at  common 
law  was  a  pure  anomaly;  either  it  had  no  reason  at  all  (as  modern 
legislation  practically  pronounces),  or  it  was  based  on  an  apprehen- 
sion of  imposition,  in  which  view  the  rule  of  voidability  should  have 
been  applied.  The  invalidity  of  acts  ultra  vires  of  a  corporation  does 
not  involve  the  present  principle,  but  rather  that  of  prohibited  acts ; 
for  the  law's  prohibitions  of  such  acts  by  corporations  are  of  the  same 
nature  as  its  prohibition  of  gambling  or  bribing  contracts  by  natural 
persons." 


B.     INTEGRATION  OF  LEGAL  ACTS, 
(VARYING  THE  TERMS  OF  A  VALID   DOCUMENT). 

General  Theory  of  the  Rule  against  Varying  the  Terms 
OF  A  Writing.^  "When  parties  negotiate  at  a  distance,  by  letters 
and  telegrams, — first  an  offer,  then  a  declination,  then  a  re- 
^"^  vision  of  the  offer,  then  a  halt  upon  an  important  term,  after- 
wards an  offer  of  its  concession  in  return  for  the  concession  of  some 
prior  term  now  to  be  changed,  and  finally  an  acceptance  of  this  con- 
cession, and  thus  an  end  of  the  negotiations, — where  are  terms  of 
this  contract  to  be  found?  Obviously,  in  this  congeries  of  letters  and 
telegrams,  as  mutually  modifying  and  complementing  each  other. 
The  whole  of  the  contract  is  not  in  any  one  document.  Nor,  on  the 
other  hand,  does  the  whole  of  any  document  (probably)  represent  a 
part  of  the  contract,  because  some  of  its  terms  have  been  impaired 
and  replaced  by  other  documents  in  the  series.  Nor  can  it  be  said 
that  there  is  a  series  of  legal  acts,  each  one  independent,  successively 
modifying  the  preceding  ones;  for  each  letter  and  telegram  is  merely 
tentative  and  preparatory,  and  there  exists  no  legal  act  until  the  final 
assent  is  given.  That  assent,  when  it  comes,  adopts  and  vivifies  the 
entire  mass,  which  until  then  was  legally  inchoate  only.  The  process 
is  not  unlike  the  fall  of  cards  in  the  play  of  a  trick  at  whist;  the 
total  effect  cannot  be  determined  till  the  last  card  has  fallen,  and 
no  one  card  exhibits  in  itself  the  effect  of  the  trick;  yet,  when  all 
are  played,  the  second  card  may  prove  to  be  the  decisive  factor  and 
may  remain  unimpaired  by  any  later  play. 

"On  the  other  hand,  if  instead  of  leaving  the  net  effect  of  the 
negotiations  to  be  gleaned  from  the  mass  of  writings,  a  single  docu- 
ment  is   finally   drawn   up  to   replace   them   and   to   embody   their  net 

1 — Quoted    from    W.,    §  2425. 


606 


PAROL    EVIDENCE   RULE. 


No.  552. 


effect,  and  is  signed  or  otherwise  adopted  by  the  parties,  this  document 
will  now  alone  represent  the  terms  of  the  act.  Instead  of  leaving 
the  wheat  mingled  with  the  chaff,  the  wheat  has  been  definitely  se- 
lected and  set  apart  in  a  single  mass.  The  wheat  existed  there,  no 
less  before  than  now,  but  it  has  now  been  placed  in  a  single  receptacle 
by  itself. 

"This  process  of  embodying  the  terms  of  a  legal  act  in  a  single 
memorial  may  be  termed  the  Integration  of  the  act,  i.  e.  its  formation 
from  scattered  parts  into  an  integral  documentary  unity.  The  prac- 
tical consequence  of  this  is  that  its  scattered  parts,  in  their  former 
and  inchoate  shape,  have  no  longer  any  legal  effect;  they  are  replaced 
by  a  single  embodiment  of  the  act.  In  other  words:  When  a  legal 
act  is  reduced  into  a  single  memorial,  all  other  utterances  of  the  par- 
ties on  that  topic  are  legally  immaterial  for  the  purpose  of  determining 
what  are  the  terms  of  their  act. 

"This  principle,  perfectly  well  settled  in  our  law,  has  several  aspects 
which  it  is  necessary  here  to  notice : 

"(i)  In  the  first  place,  it  is  not  a  rule  of  evidence,  because  it  has 
nothing  to  do  with  the  probative  value  of  one  fact  as  persuading  us  of 
the  probable  existence  of  another  fact.  It  is  a  rule  of  substantive  law, 
because  it  deals  with  the  question  where  and  in  what  sources  and  ma- 
terials are  to  be  found  the  terms  of  a  legal  act.  This  understanding 
of  the  rule  is  plain  enough  in  the  modern  judicial  utterances,  in  spite 
of  the  frequent  loose  employment  of  the  word  'evidence' — a  faulty 
habit  but  easily  enough  succumbed  to,  when  applying  the  rule  at 
trials. 2 


2 — Knight  V.  Barber,  i6  M.  &  W.  66 
(1846);  the  plaintiff  and  the  defendant 
had  made  an  oral  agreement  for  the  sale 
of  shares;  on  the  same  afternoon  the 
defendant  signed  a  memorandum,  which 
was  then  handed  to  the  plaintiff,  reciting 
the  sale,  the  price,  etc.;  it  was  held  that 
this  memorandum  should  have  borne  a 
stamp.  Parke,  B. :  "With  respect  to  the 
first  point  made  by  Mr.  Baines  [for  the 
plaintiff] ,  that  there  was  a  distinct  parol 
contract  between  these  parties  before  the 
memorandum  was  signed,  if  that  memo- 
randum was  afterwards  made  and  signed 
by  the  defendant,  and  was  intended  to 
contain  the  terms  of  the  contract  and 
to  be  acted  upon  by  the  plaintiff,  it  be- 
came, when  it  was  so  acted  upon,  the 
real  contract  between  the  parties.  The 
parol  agreement  goes  for  nothing,  if  it 
was  intended  that  it  should  be  reduced 
into   writing  and   this   is  afterwards   done." 

Van  Fleet,  C,  in  Van  Syckel  v.  Dal- 
rymple,  32  N.  J.  Eq.  233  (1880):  "What 
was  said  during  the  negotiation  of  the 
contract   or    at    the    time    of    its    execution 


must  be  excluded,  on  the  ground  that 
the  parties  have  made  the  writing  the 
only  repository  and  memorial  of  the 
truth,  and  whatever  is  not  found  in  the 
writing  must  be  understood  to  have  been 
waived  and  abandoned." 

Sir  /.  P.  Wilde,  J.,  in  Guardhouse  v. 
Blackburn,  supra.  No.  547=  "It  is  one 
thing  to  admit  evidence,  and  another  to 
give  effect  to  it.  If  a  statute  require 
that  a  thing  should  be  in  writing  and 
signed,  in  order  to  its  validity,  it  pre- 
cludes the  court  from  giving  effect  to 
parol  testimony  of  that  which  is  required 
to  be  so  written  and  signed.  And  if  it 
be  said,  why,  then,  admit  parol  evidence 
on  the  subject  at  all?  The  answer  is, 
that  if  the  scope  of  such  evidence  can  be 
clearly  known  before  it  is  heard,  it  should 
be  excluded;  but  then  only  on  the  ground 
of  immateriality,  not  because  it  is  sec- 
ondary. In  actual  practice  a  large  number 
of  cases  are  so  presented  that  it  is  im- 
practicable to  reject  evidence  as  immaterial 
before  the  details   of  it  are   known." 


No.  554,  B.      VARYING  THE  TERMS  OF  A  DOCUMENT.  607 

"(2)  In  the  next  place,  this  rule  has  no  necessary  relation  to 
any  rule  of  law  requiring  acts  to  be  done  with  a  particular  formality 
such  as  writing.  On  the  one  hand,  a  contract  may  be  entirely  in  writ- 
ten form,  prescribed  by  law,  and  yet  the  terms  may  be  scattered 
through  many  wrrtings  and  not  integrated  in  a  single  document ;  for 
example,  a  will  of  personalty  under  the  statute  of  Charles  II  (against 
frauds  and  perjuries)  had  to  be  in  writing,  and  yet  the  ecclesiastical 
Courts  constantly  dealt  with  valid  wills  which  were  made  up  from 
numerous  separate  writings  of  all  sorts.  On  the  other  hand,  even 
where  no  form  of  writing  is  prescribed,  the  rule  of  integration  applies 
if  the  parties  have  in  fact  embodied  their  act  in  a  single  memorial."' 


Private  Acts. 


Lilly's  Practical  Register,  48  (1719),  as  quoted  in  Viner's 
Abridgment,  "Contract,"  G.  18:  "If  an  agreement  made  by  parol  to 
do  anything  be  afterwards  reduced  into  writing,  the  parol 
^**  agreement  is  thereby  discharged;  and  if  an  action  be  brought 
for  the  non-performance  of  this  agreement,  it  must  be  brought  upon 
the  agreement  reduced  into  writing,  and  not  upon  the  parol  agreement; 
for  both  cannot  stand  together,  because  it  appears  to  he  hut  one  agree- 
ment, and  that  shall  be  taken  which  is  the  latter  and  reduced  to  the 
greater  certainty  by  writing;  for  vox  etnissa  volat  litera  scripta 
manet."* 


WEBB  V.  PLUMMER  (1819). 
2.  B.  &  Aid.    746,  y^o. 

Assumpsit.  The  declaration  stated,  that  the  plaintiff  being  pos- 
sessed of  a  farm,  was  in  respect  of  it  entitled  to  foldage;  and  that  in 
consideration  that  the  plaintiff  would  relinquish  and  give  up 
^'**  the  possession  of  the  farm,  and  would  permit  him  to  have  the 
benefit  of  such  foldage,  the  defendant  undertook  to  make  due  and 
customary  allowances,  as  between  in-coming  and  out-going  tenants, 
for  and  in  respect  of  the  said  foldage.    At  the  trial  at  the  last  Sussex 

3 — Pollock,  C.  B.,  in  Eden  v.  Blake,  13  does  not  exist  in  this  State;  .  .  .  the  cases 
M.  &  W.  614,  618  (184s):  "Whatever  be  in  this  State  in  which  parol  evidence  has 
the  value  of  the  goods  sold,  whether  it  be  been  allowed  to  contradict  or  vary  writ- 
such  as  calls  for  a  memorandum  in  writ-  ten  instruments  may  be  classed  under 
ing,  under  the  statute  of  frauds  or  not,  two  heads:  ist,  where  there  was  fraud, 
if  there  has  been  a  memorandum  in  writ-  accident,  or  mistake  in  the  creation  of 
ing,  it  cannot  be  altered  by  extrinsic  evi-  the  instrument  itself;  and  2d,  where  there 
dence."  has    hecn    an    attempt    to    make    a    fraudu- 

4 — The    Pennsylvania    rule    is    sui   gene-  lent  use   of  the  instrument  in   violation  of 

sis:       Paxton,    J.,     in     Phillips    v.     Meily,  a  promise  or  agreement   made  at   the   time 

106   Pa.    536,    543    (1884):      "The    English  the    instrument    was    signed    and     without 

rule  that  parol  evidence  is  inadmissible  which  it  would  not  have  been  executed." 
to  vary  the  terms  of  a  written  instrument 


608  PAROL   EVIDENCE   RULE.  No.  554. 

assizes  before  Park,  J.,  the  only  question  was  as  to  the  foldage,  in 
respect  to  which  a  certain  sum  was  claimed  by  the  plaintiff,  who  was 
the  out-going  tenant  of  a  Southdown  farm,  from  the  defendant,  the 
incoming  tenant.  It  was  admitted,  that  by  the  custom  of  the  country 
such  an  allowance  was  usually  made;  but  the  defendant  contended, 
that  under  the  special  provisions  of  the  plaintiff's  lease,  the  custom 
of  the  country  was  excluded.  The  following  were  the  clauses  relied 
on:  "And  also  that  the  said  Henry  Webb  shall  not,  during  the  term, 
carry,  or  cause  or  suffer  to  be  carried  from  off  the  premises,  any  hay, 
straw,  corn  in  the  straw,  haulm,  sheaf,  or  fodder,  muck,  dung,  com- 
post, or  sullage,  that  shall  grow,  arise,  or  be  made  in  or  upon  the  said 
demised  premises;  but  yearly  and  every  year,  in  a  good  husband- 
like manner,  fodder  out,  lay,  spread,  spend,  and  use  the  same,  in  or 
upon  some  proper  part  thereof,  upon  pain  of  forfeiting  three  pounds 
for  each  load  so  carried  away  from  the  said  demised  premises ;  and 
also  shall  and  will,  at  all  times  during  the  said  term,  penn  or  fold  his 
flock  of  sheep,  which  he  shall  keep  upon  said  demised  premises,  upon 
such  parts  where  the  same  have  been  usually  folded,  upon  the  pen- 
alty of  three  pounds  a  time  for  each  and  every  time  that  the  same 
shall  be  folded  off  from  the  demised  premises,  or  on  any  other 
part  thereof,  than  where  the  same  have  been  usually  folded  as 
aforesaid;  and  also  shall  and  will,  in  the  last  year  of  the  said 
term,  at  the  usual  time  for  moving  the  dung  out  of  the  closes,  carry 
all  the  dung  and  manure  arising  on  the  premises  in  the  preceding 
year  to  such  part  or  parts  of  the  said  fallowed  lands  or  grattens  as 
shall  be  appointed  by  the  lessor,  his  heirs  or  assigns  or  the  next  suc- 
ceeding tenant  or  tenants,  and  there  cast  the  same  into  a  mixen  or 
mixens,  he  and  they  paying  for  fallowing  such  land  and  carrying  out 
the  dung,  but  nothing  for  the  dung  itself,  and  also  grass  in  the 
ground,  and  for  thrashing  out  the  corn,  as  is  customary  between  a 
tenant  coming  in  and  a  tenant  going  out  of  a  farm."  The  learned 
judge  directed  the  jury  to  find  a  verdict  for  the  plaintiff,  with  liberty 
to  move  to  enter  a  verdict  for  the  defendant. 

Bayley,  J. :  "I  am  of  opinion  that  the  plaintiff  is  not  entitled  to 
recover  the  compensation  in  question.  Where  there  is  a  written 
agreement  between  the  parties,  it  is  naturally  to  be  expected,  that  it 
will  contain  all  the  terms  of  their  bargain ;  but  if  it  is  entirely  silent 
as  to  the  terms  of  quitting,  it  may  let  in  the  custom  of  the  country  as 
to  that  particular.  If;  however,  it  specifies  any  of  those  terms,  we 
must  then  go  by  the  lease  alone.  The  custom  of  the  country  applies 
to  those  cases  only  where  the  specific  terms  are  unknown ;  and  it  is 
founded  upon  this  principle,  that  justice  requires  that  a  party  should 
quit  upon  the  same  terms  as  he  entered.  If,  therefore,  the  party,  when 
he  entered  upon  the  farm,  paid  for  a  way-going  crop,  or  for  foldage, 
manure,  fallowing,  or  tillage,  then  if  the  lease  be  wholly  silent  as  to 
the  terms  upon  which  he  is  to  quit,  the  custom  of  the  country  may  be 


No.  555.  B.       VARYING  THE  TERMS  OF  A  DOCUMENT.  609 

introduced,  and  he  may  be  entitled  to  receive  for  a  way-going 
crop,  foldage,  &c.  .  .  .  Here,  too,  there  is  a  specific  contract  to  fold 
the  flock  upon  the  premises,  under  a  penalty.  My  judgment,  however, 
is  founded  particularly  on  the  last  stipulation  in  the  lease,  by  which 
the  tenant  is  prohibited  from  carrying  off  the  manure,  and  by  which 
the  incoming  tenant  is  directed  to  make  certain  payments  to  him;  and 
if  a  lease  speaks  distinctly  of  the  allowances  to  be  made  upon  quitting, 
it  seems  to  mc  to  exclude  all  others  which  are  not  named." 

HoLROYD,  J.:  "I  am  of  the  same  opinion.  .  .  .  Even  supposing 
that  there  was  no  covenant  to  fold  in  this  lease,  still,  inasmuch  as  it 
provides  for  the  payments  which  the  incoming  tenant  is  to  make,  it 
seems  to  me  that  its  language  is  equivalent  to  this,  that  the  incoming 
tenant  shall  pay  for  such  things  as  are  specified,  and  no  more.  For 
the  rule  cxpressio  tmius  est  cxclusio  alterius  applies.  Then  as  the 
parties  have  provided  for  all  the  payments  that  were  to  be  made,  and 
as  they  have  not  mentioned  foldage,  it  follows  that  the  plaintiff  is  not 
entitled  to  any  compensation  for  it,  and  that  the  verdict  must  be  en- 
tered for  the  defendant." 


BROWN  v.  BYRNE  (1854). 
3  E.  &  B.  /03. 

Action  for  a  freight  bill  of  £145,  gs,  lod.  The  plaintiff  was  a 
shipowner  in  Liverpool.  The  defendant  was  a  merchant  there,  carry- 
ing on  business  under  the  firm  of  A.  E.  Byrne  &  Co.  On  the 
^^^  5th  October,  1853,  Messrs.  J.  B.  Byrne  &  Co.,  of  New  Orleans, 
shipped  on  board  the  ship  Courier,  a  vessel  belonging  to  the  plaintiff, 
no  bales  of  cotton,  for  which  the  master  signed  a  bill  of  lading,  of 
which  the  following  is  a  copy :  "Shipped  in  good  order  and  well  con- 
ditioned, by  J.  B.  Byrne  &  Co.,  on  board  the  ship  called  the  Courier, 
whereof  Gemmill  is  master,  now  lying  at  the  port  of  New  Orleans, 
and  bound  for  Liverpool,  to  say,  one  hundred  and  ten  bales  cotton, 
being  marked  and  numbered  as  in  the  margin,  and  are  to  be  delivered 
in  the  like  order  and  condition  at  the  aforesaid  port  of  Liverpool 
(the  dangers  of  the  sea  only  excepted)  unto  order  or  to  assigns,  he 
or  they  paying  freight  for  the  said  goods  five-eighths  of  a  penny 
sterling  per  pound,  with  5  per  cent  primage,  and  average  accustomed. 
In  witness  whereof  the  master  or  purser  of  the  said  vessel  hath  af- 
firmed to  four  bills  of  lading,  all  of  this  tenor  and  date;  one  of  which 
being  accomplished  the  others  to  stand  void.  Dated  in  New  Orleans, 
the  5th  day  of  October,  1853.  Jo^i"  Gemmill."  This  bill  of  lading 
was  forwarded  to  the  defendant,  indorsed  to  him. 

The  defendant  offered  to  pay  £143  13.?.  yd.  on  account  of  this 
freight;  but  he  refused  to  pay  the  balance,  £1  \6s.  T,d.,  on  the  ground 
that,  by  custom  of  Liverpool,  as  described  in  the  opinion,  he  was  en- 
titled to  a  deduction  of  three  months'  discount  from  the  freight. 


610  PAROL   EVIDENCE   RULE.  No.  555. 

Blackburn,  for  the  defendant:  "Perhaps  it  is  not  possible  to  rec- 
oncile all  the  cases  on  this  matter,  or  to  lay  down  accurately  the 
limits  to  the  admissibility  of  custom.  But  the  cases  agree  in  laying 
down  limits  which  certainly .  include  this  case.  It  may  be  convenient 
first  to  answer  a  question,  put  from  Bench,  as  to  whether  there  is  a 
distinction  between  written  and  verbal  contracts.  There  is  a  differ- 
ence ;  but  in  this  respect  there  is  none.  When  the  parties  have  agreed 
that  a  particular  writing  shall  be  the  record  of  their  contract,  they 
cannot  by  other  evidence  show  that  their  intention  was  something 
different  from  what  they  have  expressed  in  that  record.  When  there 
is  no  record  of  the  contract,  the  intention  is  to  be  gathered,  not  only 
from  their  words,  but  from  everything  else.  But,  if  the  parties  met 
for  the  first  and  last  time,  and  made  a  contract  entirely  by  words, 
these  words  would,  if  proved,  have  precisely  the  same  construction 
as  if  they  had  been  written  down.  It  is  quite  true  that  evidence 
is  also  admissible  to  interpret  words;  but  that  is  on  a  different  ground. 
If  a  contract  were  made  in  France  between  Frenchmen,  and  were 
sued  on_  here,  an  interpreter  would  be  sworn  to  prove  the  meaning 
of  the  French  words.  But  evidence  of  French  lawyers  would  also 
be  admissible,  to  show  what  incidents  the  French  law  annexed  to  such 
a  contract ;  for  such  incidents  are  tacitly  incorporated.  But  the 
parties  may,  by  express  words  or  by  implication,  agree  to  exclude  the 
incident  which  the  general  law  would  annex  if  they  were  silent ;  and 
it  is  exactly  the  same  where  the  incident  is  annexed  by  custom  or  local 
law.  ...  In  the  present  case,  if  the  wording  of  the  bill  of  lading  had 
been  'he  or  they  paying  freight  for  the  said  goods  five-eighths  of  a 
penny  per  pound,  cash  without  deduction,'  the  tenor  of  the  instru- 
ment would  have  expressly  excluded  the  custom;  but  there  are  no 
such  words.  Then  the  question  is,  not  whether  the  custom  if  admitted 
will  vary,  or  be  inconsistent  with,  the  contract  as  it  would  stand  with- 
out the  custom,  but  whether  it  is  impliedly  excluded  by  the  tenor  of 
the  instrument.  The  other  mode  of  enunciating  the  proposition  has 
been  used  by  high  authorities,  but  evidently  is  inaccurate.  No  one 
ever  did  or  ever  will  seek  to  annex  an  incident  by  proof  of  a  custom, 
except  for  the  express  purpose  of  varying  the  contract  from  what  it 
would  be  if  the  custom  were  not  proved." 

CoLKRiDGE,  J. :  "This  was  a  special  case  extremely  well  argued 
before  my  brothers  Wightman,  Erle,  Crompton,  and  myself,  at  the 
sittings  after  last  term,  by  Mr.  Mellish  and  Mr.  Blackburn.  And 
the  question  for  decision  is  shortly  this :  Whether,  in  an  action  by  a 
shipowner  against  the  indorsee  of  a  bill  of  lading,  to  whom  goods 
have  been  delivered  at  Liverpool,  and  who  has  accepted  them,  the  bill 
of  lading  making  them  deliverable,  he  'paying  freight  for  them  five- 
eighths  of  a  penny  sterling  per  pound,  with  £5  per  cent  primage,  and 
average  accustomed,'  the  latter  may  lawfully  claim  to  retain  from 
£138  lis.  2)d.,  the  amount  of  the  freight  at  the  rate  specified,  £1    16s.  ^d., 


No,  555.  B.      VARYING  THE  TERMS  OF  A  DOCUMENT.  611 

on  the  ground  that,  by  the  custom  of  Liverpool,  he  is  entitled  to  a 
deduction  of  three  months'  discount  from  the  freight.  It  is  admitted 
that  the  custom  exists  in  fact,  in  regard  of  shipments  from  New  Or- 
leans, and  some  other  ports  in  the  Southern  States  of  the  American 
Union,  to  Liverpool;  but  it  is  objected  to  as  bad  in  law,  because  it 
is  inconsistent  with  the  written  document,  the  bill  of  lading.  Five- 
eighths  of  a  penny  on  the  weight  of  the  cargo  is,  it  is  said,  equal  to 
£138  lis.  3^. :  the  bill  must  be  read  as  if  that  sum  were  specified  in 
it;    and  this  custom,  if  allowed,  will  change  it  to  £136  15.?. 

"The  principles  on  which  this  case  is  to  be  decided  are  perfectly 
clear;  the  difficulty  lies  in  the  application  of  them  to  the  facts.  .  .  . 
In  all  contracts,  as  to  the  subject-matter  of  which  known  usages  pre- 
vail, parties  are  found  to  proceed  with  the  tacit  assumption  of  these 
usages;  they  commonly  reduce  into  writing  the  special  particulars  of 
their  agreement,  but  omit  to  specify  these  known  usages,  which  are 
included  however,  as  of  course,  by  mutual  understanding:  evidence 
therefore  of  such  incidents  is  receivable.  The  contract  in  truth  is 
partly  express  and  in  writing,  partly  implied  or  understood  and  un- 
written. But,  in  these  cases,  a  restriction  is  established  on  the  sound- 
est principle,  that  the  evidence  received  must  not  be  of  a  particular 
which  is  repugnant  to,  or  inconsistent  with,  the  written  contract. 
Merely  that  it  varies  the  apparent  contract  is  not  enough  to  exclude  the 
evidence ;  for  it  is  impossible  to  add  any  material  incident  to  the 
written  terms  of  a  contract  without  altering  its  effect,  more  or  less.* 
.  .  .  Here  the  contract  is,  to  pay  freight  on  delivery  at  a  certain  rate 
per  pound:  is  it  inconsistent  with  this  to  allege  that,  by  the  custom, 
the  shipowner,  on  payment,  is  bound  to  allow  three  months'  discount? 
We  think  not.  The  written  contract  expressly  settles  the  rate  of 
payment :  the  custom  does  not  set  this  aside ;  indeed,  it  adopts  it,  as 
that  upon  which  it  is  to  act,  by  establishing  a  claim  for  allowance  of 
discount  upon  freight  to  be  paid  after  that  rate.  The  consignee  un- 
dertakes to  pay  freight  on  delivery  after  that  rate;  the  shipowner 
undertakes  to  allow  three  months'  discount  on  freight  paid  after  that 
rate ;  the  latter  contract  is  dependent  on  the  former,  but  is  not  re- 
pugnant to  it.  If  the  bill  of  lading  had  expressed,  or  if,  from  the 
language  of  it,  the  intention  of  the  parties  could  have  been  collected, 
that  the  freight  at  the  specified  rate  should  ba  paid,  free  from  all  de- 
ductions, customary  or  otherwise,  then  it  would  have  been  repugnant 
to  it  to  set  up  the  custom,  and  the  case  would  have  been  brought 
within   the   restriction   mentioned   above." 

I — Grove,   J.,   in   Hutchinson  v.   Tatham,  tom,    inasmuch    as    the   effect    of    the    con- 

L.   R.  8  C.   P.   482,  488   (1873):      "In   one  tract    would   not   be   the   same    without   the 

sense   the   contract   must   always   be   varied  parol   evidence,   or  else   the   parol   evidence 

by  the  admission  of  the  evidence   of  cus-  would  itself  be  unnecessary." 


612  PAROL   EVIDENCE   RULE.  No.  556. 

BRETTO  V.  LEVINE  (1892). 
50  Minn.  168,  52  N.  W.  525. 

Dickinson,  J.:  "The  defendants  were  formerly  the  owners  of  cer- 
tain real  estate  situate  in  the  town  of  Tower,  including  a  store  building 
standing  thereon,  in  which  was  a  quantity  of  shelving  put  up  for 
^^^  use  therein.  They  also  had  within  the  building  certain  other 
property  which  is  the  subject  of  this  action,  consisting  of  hanging 
lamps,  stove,  tables,  show  cases,  chairs,  counters,  safe,  and  other  per- 
sonal property.  On  the  nth  day  of  February,  at  the  city  of  Duluth, 
they  agreed  orally  upon  a  sale  of  the  real  estate  to  the  plaintiff,  and, 
as  the  plaintiff  claims,  of  all  the  personal  property  also,  for  the  price 
of  $4,300.  Pursuant  to  that  agreement  a  deed  of  conveyance  of  the 
real  estate  was  made  and  delivered  the  following  day,  in  which  the 
consideration  expressed  was  as  above  stated,  and  which  was  paid. 
In  this  deed,  following  the  description  of  the  premises  conveyed,  is 
the  clause:  'This  grant  includes  all  the  shelving  in  the  building 
situate  on  said  premises.'  The  issue  in  this  case  is  as  to  whether 
the  sale  included  the  personal  property  referred  to,  other  than  the 
shelving,  and  the  principal  question  of  law  is  whether  the  effect  of 
the  deed  was  to  render  incompetent  the  oral  proof  which  was  re- 
ceived at  the  trial,  to  the  effect  that  by  the  agreement  of  the  parties 
this  personal  property  was  included  in  the  sale.  If  such  was  the  agree- 
ment, the  title  passed.  The  payment  of  the  price  saved  the  transaction 
from  the  operation  of  the  statute  of  frauds. 

"Although  the  agreement,  assuming  that  it  included  the  personal 
property,  as  well  as  the  real  estate,  was  entire  in  its  nature,  it  re- 
lated to  subjects  so  different  that  different  modes  of  carrying  it  into 
execution  were  appropriate,  if  not  necessary.  As  to  the  personal 
property,  all  that  was  necessary  to  transfer  the  title  was  the  agree- 
ment of  sale  and  the  payment  of  the  price.  The  real  estate  could  only 
be  legally  conveyed  by  deed.  That  was  the  ordinary  and  legally  proper 
purpose  of  such  an  instrument.  If  the  deed  had  not  contained  the 
clause  above  recited,  there  would  be  not  much  reason  to  support  a 
claim  that  the  deed  of  the  real  estate  was  intended  by  the  parties  to 
embrace,  and  become  the  exclusive  evidence  of,  all  which  they  might 
have  agreed  upon  or  intended  to  accomplish,  so  as  to  exclude  oral 
evidence  of  a  sale  of  the  personal  property  as  well  as  of  the  real  estate. 
Such  an  instrument  would  not  be  legally  presumed  to  have  been  in- 
tended to  have  a  wider  or  different  effect  than  that  which,  and  which 
alone,  such  instruments  are  commonly  and  properly  executed  to  ac- 
complish,— that  is,  to  convey  real  property,  and  to  express  such  condi- 
tions or  covenants  concerning  the  same  as  might  be  agreed  upon.  An 
instrument  of  such  a  nature  would  not  be  presumed  to  have  been 
intended  also  to  accomplish  the  very  different  purpose  of  evidencing 
all  transactions  or  agreements  of  the  parties  relating  to  a  subject  dis- 


No.  557.  B.      VARYING  THE  TERMS  OF  A  DOCUMENT.  613 

tinct   from  that  to  which    the    deed    in  terms   and   appropriately   re- 
lates. .  .  . 

"But  we  do  not  think  that  the  clause  concerning  the  shelving  in  the 
building  gave  to  this  deed  any  other  effect  in  this  particular  than  it 
would  have  had  if  this  clause  had  been  omitted.  If  such  a  clause  had 
been  inserted  with  respect  to  one  or  more  articles  of  personal  prop- 
erty, as  chairs,  of  such  a  nature  that  there  could  be  no  doubt  as  to 
whether  they  constituted  a  part  of  the  realty  so  as  to  pass  under  a 
deed  conveying  the  real  property,  the  result  would  probably  be  dif- 
ferent. But  the  most  satisfactory  conclusion,  as  to  the  reason  for  in- 
troducing this  clause  in  the  deed,  is  that  it  was  because  of  some  uncer- 
tainty or  doubt  as  to  whether  the  shelving  was  properly  a  part  of  the 
realty,  or  only  personal  property,  and  to  prevent  any  controversy  or 
question  concerning  that  matter.  By  the  technical  language  of  the 
deed,  the  shelving  was  included  as  a  part  of  the  real  property,  'this 
grant'  being  declared  to  include  it.  From  this  it  is  not  to  be  con- 
clusively presumed  that  the  deed  was  not  intended  merely  as  a  con- 
veyance of  what  was  deemed  to  be,  or  to  belong  to,  the  real  estate, 
but  also  to  be  the  repository  of  all  that  the  parties  had  agreed  upon 
or  done,  so  as  to  exclude  parol  evidence  of  a  sale  of  personal  property 
as  a  part  of  the  same  transaction." 


POTTER  V.  EASTON  (1901). 
82  Minn.  247,  84  N.  W.  loii. 

Start,  C.  J. :  "On  February  12,  1897,  the  defendants  executed  to 
the  plaintiff  three  promissory  notes,  for  $500  each,  due  in  one,  two,  and 
three  years,  respectively,  with  interest.  There  was  written  on 
""•  the  face  of  each  note  these  words:  'Secured  by  mortgage  on 
one  bay  pacing  stallion  known  as  Lebbeas  I,  2:1^%.'  As  a  part  of 
the  same  transaction  they  executed  to  the  plaintiff  a  chattel  mortgage 
to  secure  the  payment  of  the  notes  upon  'One  mahogany  bay  stallion, 
known  as  Lebbeas  I  (2:1334  pacing).'  They  also  signed  and  deliv- 
ered to  the  plaintiff  a  writing  in  these  words:  This  is  to  certify  that 
we  have  bought  the  bay  stallion  known  as  Lebbeas  I  (pacing  2:1314). 
and  given  in  payment  three  promissory  notes,  of  $500  each,  payable 
yearly,  with  interest  at  6  per  cent,  per  annum,  payable  Rochester ; 
and  we  further  agree  to  apply  one-third  net  of  said  Lebbeas  Fs  earn- 
ings after  September  i,  1897,  to  liquidate  said  notes.'  This  is  an 
action  upon  the  notes,  to  recover  an  alleged  balance  of  $1,239.20.  The 
answer  alleged  that  the  notes  were  given  for  the  purchase  price  of 
the  stallion  sold  by  plaintiff  to  defendants,  and  that  the  plaintiff  war- 
ranted the  horse  to  be  sound,  but  that  in  fact  he  was  unsound. — had 
a  ringbone  and  was  broken  in  wind, — and  that  by  reason  of  such 
breach  of  the  warranty  the  defendants  had  sustained  damages  in  a 
sum  exceeding  the  amount  due  on  the  notes.     The  reply  admitted  that 


614  PAROL   EVIDENCE   RULE.  No.  557. 

the  notes  were  given  for  the  purchase  price  of  the  horse,  but  denied 
that  the  plaintiff  'made  any  warranty  whatever  regarding  the  horse 
called  "Lebbeas  I." '  On  the  trial  the  notes,  mortgage,  and  certifi- 
cate were  offered  in  evidence  by  the  plaintiff.  The  defendants  gave 
oral  evidence  tending  to  prove  that  the  plaintiff  warranted  the  horse, 
and  that  there  was  a  breach  thereof,  and  resulting  damages.  The 
evidence  was  received  over  the  objections  and  exceptions  of  the  plain- 
tiff, which  were  to  the  effect  that  the  contract  of  sale  was  in  writing, 
and  such  oral  evidence  was  incompetent.  The  plaintiff  had  a  verdict 
for  $150  only,  and  he  appealed  from  the  judgment  entered  upon  the 
verdict.  The  correctness  of  the  trial  court's  ruling  upon  the  admis- 
sibility of  the  oral  evidence  to  prove  the  warranty  is  the  only  question 
presented  by  the  record  for  our  decision. 

j  "The  plaintiff  contends  that  the  certificate  is  a  complete  contract, 
purporting  to  state  the  terms  of  the  purchase  of  the  horse ;  hence 
evidence  of  an  oral  warranty  of  the  soundness  of  the  horse  was  in- 
competent. If  the  premises  of  this  proposition  are  correct,  the  con- 
clusion is  necessarily  so;  for,  if  the  horse  was  sold  with  an  oral 
warranty  as  to  his  soundness,  the  warranty  was  one  of  the  terms  of 
the  contract,  and  not  a  separate  or  collateral  one.  Therefore,  if  the 
certificate  here  in  question  is  complete  in  itself,  and  couched  in  such 
language  as  imports  a  legal  contract  for  the  sale  of  the  horse,  parol 
evidence  is  not  admissible  to  add  to  the  written  terms  of  the  contract; 
for,  if  such  be  the  correct  construction  of  the  writing,  it  will  be  con- 
clusively presumed  that  it  contains  all  of  the  terms  and  stipulations 
of  the  parties  in  the  transaction.  But  if  the  writing  is  manifestly 
incomplete,  and  it  appears  upon  its  face  that  the  parties  did  not  in- 
tend it  to  be  a  complete  statement  of  the  whole  contract  between  them, 
parol  evidence  is  competent  to  prove  the  existence  of  any  separate 
agreement  as  to  any  matter  on  which  the  writing  is  silent  which  is 
not  inconsistent  with  its  terms. 

"These  rules  are  elementary,  but,  in  their  application  to  particu- 
lar cases,  care  is  required  in  distinguishing  the  cases  so  as  to  deter- 
mine within  which  rule  the  particular  case  falls.  In  considering 
whether  or  not  a  particular  writing  is  an  incomplete  contract,  within 
the  rule  stated,  the  controlling  question  is  whether  it  appears  upon 
the  face  of  the  writing  that  the  parties  intended  it  to  be  the  exclusive 
evidence  of  their  agreement.  While  the  writing  itself  is  the  only 
criterion  by  which  the  intention  of  the  parties  is  to  be  ascertained, 
yet  it  is  not  necessary  that  the  incompleteness  of  the  writing  should 
appear  on  its  face  from  a  mere  inspection  of  it,  for  it  is  to  be  con- 
strued in  the  light  of  its  subject-matter  and  the  circumstances  under 
which  and  the  purposes  for  which  it  was  executed.  So  construing 
the  certificate  or  writing  here  in  question,  and  particularly  in  connec- 
tion with  the  notes  and  the  chattel  mortgage,  which  are  a  part  of  the 
same  transaction,  it  is  reasonably  clear  from  the  face  of  the  certificate 


No.  558.  B.      VARYING  THE  TERMS  OF  A  DOCUMENT.  615 

that  it  was  not  intended  as  a  contract  for  the  sale  of  the  horse,  but 
that  it  was  intended  simply  for  the  purpose  of  further  securing  the 
payment  of  the  notes  by  a  lien  on  the  earnings  of  the  horse.  There- 
fore it  is  not  a  complete  sale  contract  on  its  face,  and  evidence  of  the 
oral  warranty  was  correctly  received  by  the  trial  court.  The  writing 
cannot  be  read  as  a  present  agreement  of  sale,  or  as  a  recital  of  the 
terms  of  a  past  sale.  It  contains  no  stipulations  to  sell  or  buy.  The 
seller  does  not  execute  it,  but  the  purchasers  do ;  and  they  recite 
therein  the  fact  of  a  past  sale,  without  attempting  to  state  any  of 
its  terms,  as  a  consideration  for  the  promise  to  apply  a  part  of  the 
earnings  of  the  horse  to  the  payment  of  the  notes.  If  the  substance 
of  this  certificate  had  been  written  into  the  chattel  mortgage,  as  it 
might  well  have  been,  could  it  be  reasonably  claimed,  by  any  fair 
or  permissible  construction  of  the  mortgage,  that  it  embodied  a  com- 
plete contract  for  the  sale  of  the  horse?  Clearly  not.  Now,  whether 
we  read  the  certificate  as  a  part  of  the  mortgage  or  in  connection 
with  it,  as  a  part  of  the  same  transaction,  it  must  receive  the  same 
construction ;  and  it  is  clear  that  it  is  not  a  complete  contract  for  the 
sale  of  the  horse,  and,  further,  that  the  parties  did  not  intend  it  to  be."^ 


RAMSDELL  v.  CLARK  (1897). 
20  Mont.  loj,  49  Pac.  59/. 

This  action  was  upon  a  lease  entered  into  between  the  respondent 
(plaintiff  below)  and  appellant  (defendant  below),  on  October  20, 
1887.  Under  the  terms  of  the  lease,  defendant  was  to  take 
"^^  possession  of  a  certain  mine,  situated  in  Silver  Bow  county,  and 
to  work  and  mine  the  same  in  "a  good  workmanlike,  and  substantial 
manner,  and  to  the  best  advantage,"  for  one  year,  unless  he  negotiated 
a  sale  of  the  said  property  within  that  period.  He  was  to  "reduce  and 
smelt  the  ore  therefrom,  and  concentrate  the  same,"  at  his  own  ex- 
pense, and  sell  the  products,  and,  after  deducting  all  expenses,  he  was 
to  pay  one-half  the  net  proceeds  to  the  plaintiff.  Defendant  took  pos- 
session of  the  mine  on  the  day  of  the  execution  of  the  lease,  but 
worked  the  same  for  a  period  of  six  months  only.  Plaintiff  instituted 
an  action  against  defendant  in  the  district  court  of  Silver  Bow  county 
on  January  30,  1892.  The  complaint  alleged  three  breaches  of  the 
covenants  contained  in  the  lease.     As  the  first  breach  it  averred  that 

I — Compare    the    following:      Depue,    J.,  of   the   terms   of  the  parties'   agreement   is 

in   Naumberg   v.    Yoi4iig,    44    N.   J.    L.    331  the    contract    itself.    ...    If    the    written 

(1892):       "In     what    manner    shall    it    be  contract    purports     to    contain     the     whole 

ascertained    whether    the    parties    intended  agreement,    and    it    is    not    apparent    from 

to    express    the    whole    of   their    agreement  the   writing  itself  that  something  has  been 

in    the    written    contract?    .    .    .    The    only  left    out    to    be    supplied    by    extrinsic    evi- 

safe    criterion    of    the    completeness    of    a  dence,    parol    evidence    to    vary   or    add    to 

written    contract    as    the     full    expression  its    terms   is   not   admissible." 


616  PAROL   EVIDENCE   RULE.  No,  558. 

defendant  had  worked  the  mine  for  six  months,  but  had  failed  to  pay 
over  to  plaintiff  one-half  of  the  net  proceeds  realized  from  the  ore:i 
extracted.  As  a  second  breach  it  alleged  that  defendant  had  failed  to 
work  the  mine  in  a  good,  workmanlike,  and  substantial  manner  during 
said  six  months,  to  the  damage  of  plaintiff  in  a  certain  sum.  The  third 
breach  set  forth  was  that  the  defendant  had  failed  to  work  the  mine 
at  all  after  the  expiration  of  said  six  months,  to  the  damage  of  plain- 
tiff in  a  certain  sum.  The  defendant  answered  the  complaint,  denying 
certain  of  the  allegations  therein.  He  also  averred  that  the  terms  of 
the  lease  had  been  modified  as  to  accounting  in  respect  to  concen- 
trates. As  a  defense  to  the  first  breach,  it  was  alleged  that  an  ac- 
counting had  been  had  with  plaintiff  under  the  lease,  as  modified  on 
July  10,  1 888,  and  that  he  (plaintiff)  had  been  paid,  and  had  ac- 
cepted, in  full  settlement  of  his  claims,  what  was  found  to  be  due  him. 
A  replication  was  interposed,  which,  among  other  denials,  set  forth  that 
there  had  never  been  an  accounting,  and  that  the  plaintiff  had  never 
been  paid,  and  had  never  accepted,  any  sum  in  full  settlement  for  what 
was  due  him  by  reason  of  the  first  breach  of  the  lease.  The  case  was 
tried  to  a  jury.  Upon  the  trial  the  defendant  introduced  in  evidence 
the  following  receipt:  "Dec.  6,  '94.  G.  H.  M.  Office  of  W.  A.  Clark, 
Butte,  Montana,  7-10,  1888.  Received  of  Ramsdell  Parrott  lease,  at  the 
hands  of  W.  A.  Clark,  five  hundred  and  sixty  and  79-100  dollars,  pay- 
ment in  full  for  balance  of  royalty  on  ore  and  supplies.  $560.79. 
[Signed]  Joseph  Ramsdell."  The  jury  returned  a  verdict  in  favor  of 
defendant.  A  motion  was  made  for  a  new  trial,  which  was  granted. 
The  appeal  is  from  the  order  granting  the  motion  for  a  new  trial.  .  .  . 
Buck,  J. :  "Even  keeping  in  mind  the  distinction  between  a  re- 
ceipt regarded  as  a  mere  acknowledgment,  and  as  possessing  a  con- 
tractual feature,  still  the  rule  of  law  is  not  absolutely  clear  when  it 
is  to  be  applied  to  the  language  of  each  particular  receipt.  .  .  . 
The  mere  expression  contained  in  a  receipt  'in  full  payment'  does  not 
necessarily  render  the  paper  a  contract  in  the  nature  of  a  release  or 
waiver.  Whether  a  receipt  possesses  any  contractual  feature  or  not  must 
often  be  determined  from  its  entire  language,  and  also,  at  times,  from 
the  language  in  connection  with  the  circumstances  under  which  it  was 
given.  If  A,  to  whom  B  is  indebted  in  the  undisputed  sum  of  $200,  is 
paid  by  the  latter  $100,  and  signs  a  receipt  for  the  sum  of  $200,  or, 
mentioning  the  sum  paid,  acknowledges  payment  in  full  of  the  debt, 
nevertheless  A,  in  an  action  against  B  for  the  unpaid  balance,  without 
showing  any  fraud,  mistake,  or  other  excuse  for  having  signed  the 
receipt,  can  contradict  it  by  extrinsic  evidence,  and  show  that  only 
$100  was  paid.  It  would  only  be  evidence  of  B's  having  paid  the  debt 
just  as  an  oral  admission  proved  against  A  would  be.  If.  however, 
B  has  been  indebted  to  A  on  an  account  the  amount  of  which  has 
been  in  dispute  between  them,  a  receipt  by  A  definitely  specifying 
the  entire  account,  and  acknowledging  a  sum  received  as  payment  in 


No.  559.  B.      VARYING  THE  TERMS  OF  A  DOCUMENT.  617 

full  of  the  same,  would  possess  a  contractual  feature ;  and,  in  order 
to  contradict  or  vary  the  terms  of  it  by  extrinsic  evidence  in  so  far  as 
it  would  be  a  contract,  A  would  be  required  to  observe  the  rules  of 
law  applicable  to  contracts,  and  could  not  treat  it  in  evidence  against 
him  as  if  it  were  of  no  greater  weight  than  a  mere  oral  admission  on 
his  part. 

"Let  us  apply  these  principles  to  the  receipt  given  by  the  plaintiff, 
and  relied  upon  by  the  defendant,  in  the  case  before  us.  As  to  the 
circumstances  under  which  it  was  given,  Wethey,  a  witness  for  de- 
fendant, testified  that  there  had  been  a  dispute  between  plaintiff  and 
defendant  as  to  one  or  two  items  of  the  account  due  under  the  terms 
of  the  Ramsdell-Parrott  lease,  and  that  the  last  settlement  had  between 
them  was  subsequent  to  the  expiration  of  the  six  months  during  which 
the  defendant  had  worked  the  mine.  The  receipt  specifies  the  lease, 
and  recites  that  a  certain  sum  has  been  received  by  plaintiff  as  'pay- 
ment in  full  for  the  balance  of  royalty  on  ore  and  supplies.'  The  lit- 
eral terms  of  the  paper  stand  admitted,  and  Wethey's  testimony  as  to  it 
is  uncontradicted.  It  is  not  suggested  that  the  plaintiff  did  not  actual- 
ly receive  the  sum  of  money  specified  therein.  After  the  admission 
in  evidence  of  this  testimony  and  the  receipt,  the  defendant  had  es- 
tablished a  prima  facie  defense  as  to  the  first  cause  of  action.  The 
burden  was  then  upon  the  plaintiff  to  destroy  the  effect  of  this  receipt. 
He  failed  to  do  so.  .  .  .  At  the  close  of  the  trial,  so  far  as  the 
evidence  was  concerned,  the  defendant  was  entitled  to  a  peremptory 
instruction  that  the  jury  should  find  in  his  favor  as  to  the  first  cause 
of  action."^ 


BAUM  v.  LYNN   (1895). 
^2  Miss.  9^2,  18  So.  428. 

Bill  for  accounting  by  Mary  Grace  Devine  Lynn  against  the  execu- 
trix of  John  A.   Klein  and   others.     From  a  decree   for  plaintiff,  de- 
fendant, Ellen  Baum,  executrix  of  T.  F.  Baum,  appeals. 
****^  Cooper,  C.  J.:     "In  May,  1873,  John  A.  Klein  was  appointed 

guardian  to  the  appellee  by  the  chancery  court  of  Warren  county,  and 
gave  bond  as  guardian  in  the  penalty  of  $2,000,  with  George  M.  Klein 
and  J.  F.  Baum,  appellant's  testator,  as  sureties.  .  .  .  The  prayer  is 
that  the  executrix  of  the  guardian  be  required  to  render  his  final  ac- 

2 — Cowen,    J.,    in    M'Crea    v.    Purmort,  or  extinguishes  the  deht;   a  receipt  for  the 

16    Wend.    460,    473    (1836):      "A    release  payment     does     not    extinguish     the    debt; 

cannot    be    contradicted    or    explained    by  it   is   only   evidence  that   it   has   been   paid, 

parol    because    it    extinguishes    a    pre-exist-  Not  so  of  a  written  release;  it  is  not  only 

ing    right.      But   no    receipt   can    have   the  e\'idence    of   the   extinguishment;    but   it   i* 

effect     of    destroying    per    se    any    subsist-  the    extinguisher    itself." 
ing   right;    it    is    only   evidence    of    a    fact.  Compare    the    authorities    cited    in    W., 

The    payment     of     the    money     discharges  J  2432. 


618  PAROL   EVIDENCE   RULE.  No.  559. 

count  as  guardian.  .  .  .  Decrees  were  made  against  George  M. 
Klein    and    Ellen    Baum,    executrix   of    J.    F.    Baum,    for   $2,000.  .  .  . 

"The  objection  most  strenuously  urged  to  the  decree  rests  upon  the 
following  facts,  proved  or  offered  to  be  proved  by  appellant:  The 
guardian  had  loaned  a  part  of  his  ward's  money  to  Mrs.  Mary  Irving. 
In  June,  1884,  the  guardian  being  then  dead,  and  his  estate  hopelessly 
insolvent,  the  appellee,  who  then  resided  in  the  state  of  Texas,  came 
to  this  state  to  look  after  the  estate.  On  the  i6th  of  June,  Mrs.  Irving 
made  to  her  conveyance  in  the  following  language :  'This  indenture, 
made  and  entered  into  this  day,  the  i6th  of  June,  1884,  by  and  between 
Mary  Irving,  of  the  city  of  Vicksburg,  county  of  Warren,  and  state 
of  Mississippi,  party  of  the  first  part,  and  Mary  Grace  Lynn,  of  the 
state  of  Texas,  party  of  the  second  part,  witnesseth:  That  whereas, 
John  A.  Klein,  late  of  said  city  of  Vicksburg,  did,  on  or  about  the 
14th  day  of  February,  1874,  loan  the  said  Mary  Irving  certain  moneys 
then  in  his  hands  as  guardian  of  the  said  Mary  Grace  Lynn,  then 
Mary  Grace  Devine,  and  whereas,  the  said  Mary  Irving  now  desires  to 
settle  in  full  any  balance  that  may  be  due  by  her:  Now,  therefore, 
for  and  in  consideration  of  the  premises,  and  the  consideration  of  the 
full  acquittal,  discharge  and  release  of  the  said  Mary  Irving  from 
any  and  all  liability  to  the  said  John  A.  Klein  as  guardian,  or  the  said 
Mary  Grace  Lynn  for  and  on  account  of  said  loans,  and  the  further 
consideration  of  ten  dollars  in  hand  paid,  the  receipt  of  which  is 
hereby  acknowledged,  the  said  party  of  the  first  part  does  hereby  con- 
vey and  warrant  to  the  party  of  the  second  part,  her  heirs  and  assigns, 
in  fee  simple,  the  following  described  real  estate  in  the  said  city  of 
Vicksburg,' — describing  the  property,  and  concluding  with  the  usual 
habendum.  The  appellant  took  the  deposition  of  Mr.  Irving,  who  was 
the  husband  of  the  grantor,  she  being  now  dead,  and  that  of  George 
M.  Klein,  and  of  Mr.  Smith,  the  attorney  who  prepared  the  convey- 
ance, all  of  whom  testified  that  the  conveyance  was  made  by  Mrs. 
Irving,  and  accepted  by  Mrs.  Lynn,  in  full  satisfaction  and  settlement 
not  only  of  the  debt  due  by  Mrs.  Irving  to  Klein  as  guardian,  but  also 
in  discharge  and  settlement  of  liability  on  the  part  of  the  guardian  to 
his  ward,  which  liability  Mrs.  Lynn  agreed  to  discharge  and  release 
as  a  part  of  the  consideration  for  the  conveyance.  The  complainant 
moved  to  suppress  these  depositions,  and  objected  to  them  when  of- 
fered in  evidence,  upon  the  ground  that  it  was  incompetent  to  vary 
by  parol  proof  the  written  contract  of  the  parties  as  shown  by  the 
deed.     .     .     . 

"In  Gully  v.  Grubbs,  i  J.  J.  Marsh,  387,  Judge  Robertson  in  an  ad- 
mirable and  concise  manner  states  the  true  principle  upon  which  is 
based  the  rule  of  permitting  oral  evidence  to  be  introduced  to  show 
the  true  consideration  of  a  deed  in  opposition  to  that  recited,  as  well  as 
the  limitation  of  the  rule.  .  .  .  Judge  Robertson  illustrates  his  own 
views  by  noting  the  difference  between  the  mere  statement  of  a  fact 


No.  559.  B.      VARYING  THE  TERMS  OF  A  DOCUMENT.  619 

(e.  g.  the  admission  of  the  receipt  of  the  purchase  price)  and  the  vest- 
ing, creating,  or  extinguishing  a  right  {c.  g.  by  the  execution  of  a 
release),  in  the  following  language:  'A  party  is  estopped  by  his  deed. 
He  is  not  to  be  permitted  to  contradict  it.  So  far  as  the  deed  is 
intended  to  pass  a  right,  or  to  be  the  exclusive  evidence  of  a  contract, 
it  concludes  the  parties  to  it.  But  the  principle  goes  no  further.  A 
deed  is  not  conclusive  evidence  of  everything  it  may  contain.  For  in- 
stance, it  is  not  the  only  evidence  of  the  date  of  its  execution,  nor  is 
its  omission  of  a  consideration  conclusive  evidence  that  none  passed, 
nor  is  its  acknowledgment  of  a  particular  consideration  an  objection  to 
other  proof  of  other  and  consistent  considerations ;  and,  by  analogy, 
the  acknowledgment  in  a  deed  is  not  conclusive  of  the  fact.  This  is 
but  a  fact,  and  testing  it  by  the  rationality  of  the  rule  we  have  laid 
down,  it  may  be  explained  or  contradicted.  It  does  not  necessarily 
and  undeniably  prove  the  fact.  It  creates  no  right;  it  extinguishes 
none.  A  release  cannot  be  contradicted  or  explained  by  proof,  be- 
cause it  extinguishes  a  pre-existing  right.  But  no  receipt  can  have  the 
effect  of  destroying  per  se  any  subsisting  right.  It  is  only  evidence 
of  a  fact.  The  payment  of  the  money  discharges  or  extinguishes  the 
debt.  A  receipt  for  the  payment  does  not  pay  the  debt.  It  is  only 
evidence  that  it  has  been  paid.  Not  so  of  a  written  release.  It  is  not 
only  evidence  of  the  extinguishment,  but  is  the  extinguishment  itself.' 
The  deed  now  under  examination  contains,  as  is  clearly  to  be  seen, 
no  mere  recital  of  a  consideration  paid  or  to  be  paid.  Its  recital  is 
only  of  the  facts  necessary  to  be  stated  to  intelligently  apply  the  con- 
tract of  the  parties  to  the  subject  matter.  Having  set  out  the  relation- 
ship of  debtor  and  creditor,  and  the  history  of  the  transaction  from 
which  it  arose,  the  deed  then  proceeds  to  state  what  the  parties  agreed, 
contracted,  and  did  in  reference  to  the  dissolution  of  the  relationship. 
Mrs.  Irving  did  something.  She  conveyed  the  land  to  Mrs.  Lynn.  Mrs. 
Lynn  did  something.  She  released  the  debt  to  Mrs.  Irving.  One 
transferred  a  right;  the  other  released  a  right.  If  it  be  said  that  the 
release  was  a  mere  recited  consideration  for  the  conveyance,  it  may 
with  equal  accuracy  be  replied  that  the  conveyance  was  a  mere  recited 
consideration  for  the  release;  and  therefore,  if  one  of  the  terms  of 
the  contract  may  be  varied  by  parol,  because  it  is  a  consideration,  so 
also  may  the  other  for  the  same  reason,  and  by  this  process  a  solemn 
and  executed  written  contract  would  be  totally  eaten  away.  The  true 
rule  is  that  a  consideration  recited  to  have  been  paid  or  contracted 
for  may  be  varied  by  parol,  while  the  terms  of  a  contract  may  not  be. 
though  the  contract  they  disclose  may  be  the  consideration  on  which 
the  act  or  obligation  of  the  other  party  rests."' 

3 — Compare  the  authorities  cited  in  W.,   |  2433. 


620  PAROL   EVIDENCE   RULE.  No.  560. 


CHAPIN  V.  DOBSON  (1879). 

75  N.  Y.  74. 

This  action  was  brought  upon  the  following  agreement  between  the 
parties :  "Philadelphia,  July  9,  1868.  We  agree  to  furnish  John  Dob- 
son  with  the  following  machinery,  on  terms  stated:  Sixteen 
**""  48-inch  and  7  60-inch  first  Breaker  Feeders,  at  three  hundred 
dollars  each,  delivered  at  depot  at  Pawtucket,  R.  I.,  to  be  sent  by 
steamer  from  Boston  to  Philadelphia,  and  allowance  of  three  dollars 
to  be  made  on  each  machine  for  freight.  Man's  time  and  expenses 
from  Philadelphia  to  be  charged  extra  for  applying  the  machines. 
Terms  cash  on  delivery,  5  per  cent  commission  to  be  allowed  on  each 
machine,  5  60-inch  and  4  48-inch  to  be  delivered  as  soon  as  possible, 
the  balance  in  thirty  days  thereafter.  Harwood  &  Quincy,  Agents  for 
Chapin  &  Downes.  I  agree  to  the  above.  John  Dobson."  Plaintiffs 
delivered  a  portion  of  the  machines,  for  which  they  claimed  to  re- 
cover the  purchase-price,  with  damages  for  the  refusal  on  the  part 
of  defendant  to  receive  the  residue.  Defendant's  answer  alleged 
among  other  things,  in  substance,  that  at  the  time  of  the  execution 
of  said  instrument,  and  in  consideration  that  defendant  would  execute 
the  same,  plaintiffs  agreed  and  guaranteed  that  the  machines  would 
work  well  and  to  the  satisfaction  of  defendant,  and  in  case  of  their 
failure  so  to  do,  that  plaintiffs  would  take  them  back,  and  de- 
fendant should  not  be  required  to  pay  for  them;  that  the  machines  de- 
livered did  not  work  well  or  to  the  satisfaction  of  the  defendant,  and 
were  useless  to  him ;  in  consequence  whereof  defendant  detached  them 
from  his  machinery,  notified  plaintiffs  to  remove  them,  and  refused 
to  accept  the  residue.  Upon  the  trial  defendant  offered  evidence  prov- 
ing a  parol  guaranty  to  the  effect  that  the  machines  should  be  so 
made  that  they  would  do  the  defendant's  work  well  and  satisfactorily, 
or  in  case  of  failure  that  they  should  be  taken  back,  and  not  be  paid 
for.  This  evidence  was  objected  to  on  the  ground  that,  in  substance, 
the  agreement  was  embodied  in  the  writing,  which  could  not  be  varied 
by  oral  evidence.  The  objections  were  overruled,  and  plaintiffs  duly 
excepted. 

Danforth,  J. :  "The  general  rule  requires  the  rejection  of  parol 
evidence  when  offered  to  cut  down  or  take  away  obligations  entered 
into  between  parties  and  by  them  put  in  writing.  ...  It  does  not 
apply,  therefore,  where  the  original  contract  was  verbal  and  entire  and 
a  part  only  reduced  to  writing.  Nor  has  it  any  application  to 
collateral  undertakings.  And  these  facts  are  always  open  to  in- 
quiry, and  may  be  proved  by  parol.  .  .  .  The  plaintiffs  introduced 
in  evidence  a  written  instrument  dated  July  9,  1868.  There  is  nothing 
upon  its  face  to  show  that  it  was  intended  to  express  the  whole  con- 
tract between  the  parties.     The  referee  finds   that  it  does  not  contain 


No.  560.  B.      VARYING  THE  TERMS  OF  A  DOCUMENT.  621 

it,  and  that  the  plaintiffs  at  the  same  time  guaranteed  to  the  defendant 
that  the  machines  mentioned  therein  should  be  so  made  that  they 
would  do  the  defendant's  work  satisfactorily  or  they  should  not  be 
paid  for,  and  the  defendant  thereupon  signed  the  writing  in  considera- 
tion of  said  guaranty.  He  also  finds  that  the  matters  in  writing  and 
the  above  guaranty  constituted  the  contract  or  agreement  between  the 
parties.  .  .  .  The  written  contract  related  to  machines  thereafter  to 
be  manufactured  by  the  plaintiffs,  fixed  the  price  at  which  they  were 
to  be  furnished,  the  number,  the  place,  and  manner  of  delivery,  the 
time  and  manner  of  payment.  Nothing  else  was  provided  for.  These 
terms  are  to  remain  as  written.  Some  of  them  impose  obligations 
upon  the  plaintiffs,  and  others  on  the  defendants.  The  parol  agree- 
ment was  on  the  part  of  the  plaintiffs.  By  it  they  guaranteed  'that 
the  machines  should  be  so  made  that  they  would  do  the  defendant's 
work  satisfactorily.'  The  writing  specified  machines  described  as  'First 
Breaker  Feeders,'  of  certain  dimensions.  How  they  should  work,  and 
whether  well  or  ill,  is  not  stated.  If  it  had  called  for  a  machine  to 
satisfy  a  required  purpose,  of  which  the  plaintiffs  had  notice,  and  which 
they  had  undertaken  to  supply,  they  would  have  been  bound  as  a  con- 
dition of  the  contract  to  supply  an  article  reasonably  fit  for  the  pur- 
pose, and  a  warranty  would  have  been  implied  that  it  was  so.  .  .  . 
The  guaranty  as  made  does  not  contravene  the  written  contract,  and  is 
not  inconsistent  with  it.  If  the  fitness  of  the  machine  is  implied,  the 
guaranty  is  in  harmony  with  it,  and  adds  nothing;  if  it  is  not  implied, 
the  paper  contains  no  declaration  that  the  machines  shall  be  taken 
with  all  faults  and  insufficiencies,  or  at  the  defendant's  risk.  The 
parol  evidence  therefore  contradicts  no  term  of  the  writing,  nor  varies 
it.  The  written  contract  and  the  guaranty  do  not  relate  to  the  same 
subject  matter.  The  contract  is  limited  to  a  particular  machine  as 
such.  The  guaranty  is  limited  to  the  capacity  of  the  machine.  It  is 
one  thing  to  agree  to  sell  or  furnish  machines  of  a  specific  kind,  as  of 
such  a  patent,  or  of  a  particular  designation,  and  another  thing  to  un- 
dertake that  they  shall  operate  in  a  particular  manner  or  with  a  certain 
effect,  or,  as  in  this  case,  that  they  shall  do  the  buyer's  work  satis- 
factorily. The  first  would  be  performed  by  the  delivery  of  machines 
answering  the  description  or  the  specifications  of  the  patent;  and 
whether  they  did  or  not  conform  thereto  would  be  the  only  inquiry. 
As  to  the  other,  it  in  no  respect  touches  the  first,  nor  does  it  operate 
as  a  defeasance,  but  leaves  it  valid,  and  to  be  performed,  and  the  con- 
sequences of  a  breach  of  the  guaranty  are  a  recoupment  or  abatement 
of  damages  in  favor  of  the  defendant."^ 

I— Compare  the  authorities  cited  in  W.,   §  2434;   and   a'so  the   doctrine  of  No.    548. 

ante. 


622  PAROL   EVIDENCE   RULE.  No.  561. 


BARBRE  V.  GOODALE  (1896). 

28  Or.  465,  43  Pac.  378. 

Action  to  recover  upon  two  separate  causes.  The  first  was  upon  a 
written  agreement  which  purports  upon  its  face  to  be  the  agreement 
of  one  G.  W.  Handsaker,  of  the  first  part,  and  J.  C.  Goodale, 
""■^  of  the  second  part.  By  its  terms,  in  brief,  the  first  party  agrees 
to  cut,  haul,  bank  and  deHver  to  the  second  party  2,000,000  feet  of  fir 
logs,  and,  if  certain  conditions  of  the  lumber  market  continued  to  pre- 
vail, an  additional  500,000  feet,  at  a  certain  point  upon  the  McKenzie 
river,  in  Lane  county,  at  the  rate  of  $3  per  1,000,  to  be  paid  by  the 
second  party  as  follows:  One  dollar  per  thousand  when  the  logs  were 
cut  and  banked,  and  $1  per  thousand  when  scaled  and  rolled  in  the 
river,  and  such  balance  as  should  be  found  due  between  the  parties 
within  31  days  thereafter.  The  last  clause  is  as  follows:  "It  is 
further  understood  and  agreed,  and  is  part  of  the  consideration  of 
this  agreement,  that  the  second  party  reserves  out  of  and  deducts 
from  the  balance  that  may  be  due  the  first  party,  after  making  said  first 
two  payments,  any  sum  or  sums  that  may  then  be  due  or  to  become 
due  to  the  second  party  from  J.  I.  Barbre,  or  for  which  he  is  respon- 
sible, to  pay  J.  I.  Barbre  not  to  exceed  $1,700,  the  obligations  of  which 
are  now  created."  The  contract  purports  to  be  under  seal.  The  plain- 
tiff having  cut,  hauled,  and  banked  1,442,000  feet  of  logs,  and  cut  in 
the  timber  382,000  feet  more,  and  while  proceeding  with  the  perform- 
ance of  the  contract,  the  defendant,  on  March  i,  1892,  notified  and 
directed  him  to  discontinue  the  work,  as  he  would  not  pay  for  or  take 
any  more  of  such  logs.  Whereupon  the  plaintiff  commenced  this  action 
to  recover  under  the  contract  for  such  logs  as  he  had  cut  and  banked, 
and  also  for  such  as  he  had  cut  in  the  timber.  The  complaint  pro- 
ceeded upon  the  theory  that  G.  W.  Handsaker  was  Barbre's  agent  in 
the  execution  of  said  contract,  and  that  it  was  signed  and  executed  in 
his  name,  instead  of  Barbre's,  by  consent  of  defendant,  and  hence  that 
Barbre  is  entitled  to  sue  upon  the  agreement  solely  and  in  his  own 
name.  The  second  cause  of  action  was  based  upon  the  sale  and  de- 
livery by  plaintiff  to  defendant  of  987,000  feet  of  other  logs  at  $3.25 
per  1,000,  upon  which  a  balance  of  $472.34  is  claimed.  .  .  . 

At  the  trial,  plaintiff,  while  a  witness  in  his  own  behalf,  was  asked 
and  permitted  to  answer,  over  the  objection  of  the  defendant,  the  fol- 
lowing questions:  "Question.  How  did  that  clause  about  the  $1,700, 
which  allows  Goodale  to  deduct  from  last  payment  amount  due  him 
from  Barbre,  not  to  exceed  $1,700,  come  to  be  in  the  contract?  Answer. 
I  had  been  logging  for  Goodale,  and  he  had  paid  me  about  $1,700  on 
logs  which  were  claimed  by  the  O.  &  C.  R.  R.  Co..  and  it  sued,  or 
threatened  to  sue,  him  to  recover  the  value  of  the  logs.     If  he  had  to 


No.  561.  B.      VARYING  THE  TERMS  OF  A  DOCUMENT.  623 

pay  the  railroad  company  for  the  logs,  this  had  to  be  deducted  out  of 
the  contract  price  of  those  logs.  Q.  State  what  the  conversation 
was,  at  the  time  of  your  entering  into  the  contract,  as  to  who  the 
true  parties  to  the  contract  should  be.  A.  Mr.  Goodale  and  I  had  a 
conversation  about  making  the  contract  to  get  out  some  logs.  I  wanted 
to  get  out  some  logs  for  him, — about  2,000,000  feet.  I  had  the  teams 
and  everything  necessary  to  carry  on  logging.  Mr.  Goodale  said  that 
he  would  let  me  have  a  contract  to  get  out  2,000,000,  but  did  not  want 
to  have  the  contract  made  in  my  name;  that  the  railroad  company  had 
sued,  and  he  was  afraid  that  if  the  contract  was  in  my  name  the  com- 
pany would  make  trouble ;  and  he  said,  'Why  not  make  it  in  the  name 
of  George?'  (meaning  G.  W.  Handsaker).  I  told  him  that  I  did 
not  want  to  bother  George.  Goodale  said  it  would  not  be  any  trouble 
to  him;  that  I  could  go  on  and  carry  on  the  contract  just  the  same. 
I  said  I  could  see  George  about  it,  and  I  did  speak  to  George  about 
it,  and  he  said,  so  long  as  he  would  not  be  bothered  in  any  way,  he 
would  assist  me  in  the  matter;  and  it  was  agreed  between  Mr.  Goodale, 
Mr.  Handsaker  and  myself  that  the  contract  should  be  drawn  up  and 
signed  by  G.  W.  Handsaker,  and  that  I  should  carry  it  out,  and  that 
it  should  be  my  contract,  and  not  the  contract  of  G.  W.  Handsaker,  and 
that  Mr.  Handsaker  should  not  be  bound  by  the  contract.  Under  this 
agreement  the  contract  was  drawn  up  and  signed  by  Mr.  Handsaker 
and  Goodale,  and  I  did  the  work  that  was  done  under  it."  This,  with 
other  testimony  of  the  same  nature,  all  elicited  over  defendant's  objec- 
tion, form  the  basis  of  the  principal  grounds  of  error  relied  upon  for 
the  reversal  of  the  judgment  below. 

WoLVERTON,  J. :  "The  question  is  here  presented  whether  it  is  com- 
petent to  show  by  parol  testimony  that  a  contract  executed  by  and  in 
the  name  of  an  agent  is  the  contract  of  the  principal,  where  the  prin- 
cipal was  known  to  the  other  contracting  party  at  the  date  of  its  ex- 
ecution. There  are  two  opinions  touching  the  question,  among  Amer- 
ican authorities — the  one  affirming,  and  the  other  denying;  but  the  case 
is  one  of  first  impression  here,  and  we  feel  constrained  to  adopt  the 
rule  which  may  seem  the  more  compatible  with  the  promotion  of  jus- 
tice, and  the  exaction  of  honest  and  candid  transactions  between  in- 
dividuals. The  English  authorities  are  agreed  that  parol  evidence  is 
admissible  to  show  that  a  written  contract  executed  in  the  name  of  an 
agent  is  the  contract  of  the  principal,  whether  he  was  known  or  un- 
known ;  and  the  American  authorities  are  a  unit,  so  far  as  the  rule  is 
applied  to  an  unknown  principal,  but  disagree  where  he  was  known  at 
the  time  the  contract  was  executed  or  entered  into  by  the  parties.  All 
the  authorities,  both  English  and  American,  concur  in  holding  that,  as 
applied  to  such  contracts  executed  when  the  principal  was  unknown, 
parol  evidence  which  shows  that  the  agent  who  made  the  contract  in 
his  own  name  was  acting  for  the  principal  does  not  contradict  the  writ- 
ing, but  simply  explains  the  transaction ;  for  the  effect  is  not  to  show 


G24  PAROL   EVIDENCE   RULE.  No.  561. 

that  the  person  appearing  to  be  bound  is  not  bound,  but  to  show  that 
some  other  person  is  bound  also.  And  those  authorities  which  deny 
the  apphcation  of  the  rule  where  the  principal  was  known  do  not  as- 
sert or  maintain  that  such  parol  testimony  tends  to  vary  or  contradict 
the  written  contract,  but  find  support  upon  the  doctrine  of  estoppel; 
it  being  maintained  that  a  party  thus  dealing  with  an  agent  of  a 
known  principal  elects  to  rely  solely  upon  the  agent's  responsibility, 
and  is  therefore  estopped  to  proceed  against  the  principal.  The  under- 
lying principle,  therefore,  upon  which  the  authorities  seem  to  diverge, 
is  the  presumption  created  by  the  execution  of  the  contract  in  the  name 
of  the  agent,  and  the  acceptance  thereof  by  a  party,  where  the  prin- 
cipal is  known.  Is  this  presumption  conclusive,  or  is  it  disputable? 
Without  attempting  to  reconcile  the  decisions,  we  believe  the  better 
rule  to  be  that  the  presumption  thus  created  is  a  disputable  one,  and 
that  the  intention  of  the  party  must  be  gathered  from  his  words,  and  the 
various  circumstances  which  surround  the  transaction,  as  its  practical 
effect  is  to  promote  justice  and  fair  dealing. — The  principal  may  have 
recourse  to  the  same  doctrine  to  bind  the  party  thus  entering  into 
contract  with  his  agent.  Parol  evidence,  however,  is  not  admissible  to 
discharge  the  agent,  as  the  party  with  whom  he  has  dealt  has  his  elec- 
tion as  to  whether  he  will  hold  him  or  the  principal  responsible. 

"Now,  looking  to  the  contract  which  is  the  basis  of  the  cause  of  ac- 
tion under  consideration,  we  find  that  it  was  executed  in  manner  and 
form  as  requested  by  the  defendant,  and  to  subserve  a  special  purpose 
peculiar  to  his  own  interest,  with  the  express  avowal  that  it  should  be 
treated  as  the  contract  of  plaintiff,  although  executed  in  the  name  of 
Handsaker,  the  agent.  It  is  further  disclosed  that  both  the  de- 
fendant and  the  plaintiff  afterwards  so  treated  it;  the  plaintiff  pro- 
ceeding under  it,  and  in  obedience  with  the  terms  and  conditions  there- 
of, in  cutting,  hauling  and  banking  the  logs  preparatory  to  delivery,  and 
the  defendant  by  making  payments  to  him  from  time  to  time,  some- 
times directly,  and  sometimes  through  Handsaker,  the  agent.  This  is 
ratification,  and  constitutes  a  very  significant  feature  of  the  inquiry. 
Aside  from  this,  the  contract  discloses  upon  its  face  that  a  part  of  the 
consideration  for  these  logs  moved  directly  from  defendant  to  plaintiff. 
Under  these  attendant  circumstances,  and  others  which  might  be  al- 
luded to,  we  think  the  Court  committed  no  error  in  admitting  the  testi- 
mony to  show  who  were  the  real  parties  to  the  contract,  as  well  as 
to  explain  how  the  clause  touching  the  $i.70P  came  to  be  placed  there- 
in."i 

I — Compare  the  authorities  cited  in  W.,  §  2438. 


No.  563.  B.      VARYING  THE  TERMS  OF  A  DOCUMENT.  625 

FOSTER  V.  JOLLY  (1835). 
/  C.  M.  &  R.  70s. 

Assumpsit  by  the  payee  against  the  maker  of  a  promissory  note 
for  12/.,  payable  fourteen  days  after  date.  Plea,  the  general  issue. 
At  the  trial  before  Gurney,  B.,  at  the  last  assizes  for  the  county 
^""'  of  Lancaster,  it  appeared  that  Samuel  Milnes,  the  brother-in-law 
of  the  defendant,  being  agent  for  a  co-operative  society,  and  having 
ordered  goods  for  the  society  from  a  person  named  Walker,  which  had 
not  been  paid  for,  the  plaintiff,  as  the  attorney  of  Walker,  sued  Milnes 
for  the  amount.  Milnes  then  gave  the  names  of  certain  members  of  the 
society,  who  were  also  sued  for  the  debt  and  a  verdict  obtained.  Milnes 
also  gave  a  cognovit,  and,  judgment  being  entered  up,  he  was  taken  on 
a  ca.  sa.,  and  while  in  prison,  the  defendant  gave  the  note  in  question 
for  the  amount  of  the  demand  against  Milnes.  The  defendant  now 
proposed  to  show,  that  the  note  was  given  under  an  agreement  that 
it  should  not  be  enforced,  in  case  Walker  should  obtain  a  verdict  in  the 
action  against  the  members  of  the  co-operative  society.  On  the  part 
of  the  plaintiff,  it  was  objected  that  parol  evidence  of  the  agreement 
was  inadmissible  to  vary  the  terms  of  the  written  instrument,  and  also 
that  the  agreement  was  that  the  note  should  not  be  put  in  suit,  only 
in  case  Walker  obtained  the  fruits  of  his  verdict.  The  learned  Judge, 
however,  admitted  the  evidence,  giving  the  plaintiff  leave  to  move  to 
enter  a  verdict  for  12/.,  if  the  Court  should  be  of  opinion  that  the  evi- 
dence was  inadmissible.  .  .  , 

Lord  Abinger,  C.  B.  :  "At  the  commencement  of  the  argument,  I 
felt  some  doubt,  whether  this  might  not  be  regarded  as  a  question  of 
consideration;  but  the  reasoning  of  Mr.  Wightman  has  placed  it  in 
another  light,  and  I  am  of  opinion  that  the  evidence  tendered  by  the 
defendant  went  to  vary  the  contract  appearing  on  the  face  of  the  note. 
It  is  not  a  question  of  consideration,  or  collateral  security.  The  con- 
sideration of  the  instrument  was  not  impeached,  nor  was  it  given  as 
a  collateral  security,  but  the  defence  attempted  to  be  established  was 
in  direct  contradiction  of  the  terms  of  the  note.  The  maker  of  a  note 
payable  on  a  day  certain  cannot  be  allowed  to  say,  'I  only  meant  to 
pay  you  upon  a  contingency,'  that  is  at  variance  with  his  own  writ- 
ten contract."^ 


THOMPSON  v.  CLUBLEY  (1836). 
I  M.  &  W.  212. 
Assumpsit,  by  the   endorsee  against  the  acceptor  of  a  bill  of  ex- 
change for  200I.  drawn  by  one  H.  R..  payable  to  his  own  order,  and 
by   him    endorsed    to   the   plaintiff.     Plea,    that    the   bill   of  ex- 
change  was  wholly  made  by  H.  R.,  at  the  request  and  for  and 

2 — Compare  the  authorities  cited  in   W.,    §  2444;   and  the  doctrine  of  Nos.  533,  534, 

ante. 


626  PAROL   EVIDENCE   RULE.  No.  563. 

by  way  of  accommodation  of  and  for  the  plaintiff,  and  was  accepted  by 
the  defendant,  at  the  request  of  H.  R.,  for  and  by  way  of  Hke  accom- 
modation of  and  for  the  plaintiff;  and  that  at  the  time  of  making  and 
accepting  the  said  bill  of  exchange,  it  was  expressly  agreed  by 
and  between  the  said  parties,  that  if  the  said  bill  of  exchange 
should  happen  to  be  outstanding  at  the  time  when  it  became 
due,  it  should  be  taken  up  and  paid  by  the  plaintiff,  and  that  no  claim 
or  demand  should  at  any  time  be  made  against  the  defendant  or  H.  R., 
upon  or  in  respect  of  it;  concluding  with  a  verification.  Replication, 
that  before  and  at  the  time  of  the  commencement  of  suit,  the  plaintiff 
was,  and  still  is,  the  holder  of  the  said  bill  of  exchange  for  good  and 
sufficient  consideration,  in  respect  of  his  being  the  holder  thereof: 
without  this,  that  the  bill  was  either  made  or  accepted  by  way  of  ac- 
commodation of  or  for  the  plaintiff,  or  that  it  was  agreed  by  or  between 
the  parties,  in  manner  and  form  as  the  defendant  has  above  in  the  same 
plea  in  that  behalf  alleged;  concluding  to  the  country. 

The  case  came  on  for  trial  at  the  sittings  after  Easter  term,  before 
Lord  Abinger,  C.  B.,  when  the  defendant,  in  support  of  his  plea,  called 
H.  R.,  who  stated  that  in  the  spring  of  1833  he  had  occasion  to  raise 
money,  and  having  applied  to  an  attorney  to  assist  him,  it  was  arranged 
between  him  and  the  plaintiff  that  the  witness  should  give  hira  the 
bill  on  which  the  present  action  was  brought,  but  which  should  be 
taken  up  by  the  plaintiff,  and  that  witness  should  receive  bills  of  like 
value  from  the  plaintiff,  for  which  witness  was  to  provide;  and  that 
the  defendant  had  not  received  any  value  for  his  acceptance.  It  was 
objected  on  the  part  of  the  plaintiff,  that  this  evidence  was  inadmissible, 
as  it  went  to  contradict  the  written  contract  of  acceptance,  which 
purported  to  be  an  absolute  engagement  to  pay  the  bill;  whereas  it 
was  proposed  to  show  that  the  acceptor  was  not  to  pay  it,  but  that  the 
plaintiff,  who  was  the  endorsee,  was  to  take  it  up,  and  not  to  sue  the 
acceptor ;  the  effect  of  which  was  to  make  an  entirely  different  contract. 
Foster  v.  Jolly,  i  C,  M.  &  R.  709,  was  relied  upon  as  in  point;  but 
the  objection  was  overruled.  .  .  . 

Per  Curiam  :  "This  defence  was  clearly  admissible,  inasmuch  as 
it  showed  that  the  acceptance  was  in  truth  for  the  accommodation  of 
the  plaintiff,  and  that  all  the  parties  put  their  names  to  the  bill  without 
consideration.  With  regard  to  the  evidence  being  inconsistent  with  the 
terms  of  the  instrument,  we  are  of  opinion  that  the  agreement  as  to 
payment  was  collateral,  and  not  part  of  the  original  contract.  It  was 
a  collateral  agreement,  that  the  plaintiff  would  not  enforce  the  contract 
upon  the  bill."^ 

GOSS  v.  LORD  NUGENT   (1833). 
5  B.  6-  Ad.  58. 
Denman,  C.  J.:     "By  an  agreement  in  writing,  the  plaintiff  con- 

3 — Compare  the  authorities  cited  in  W.,    §§  2444,   2445. 


No.  565.  B.       VARYING   THE  TERMS  OF  A  DOCUMENT.  627 

tracted  to  sell  the  defendant  several  lots  of  land  for  the  sum  of  £450, 
and  to  make  a  good  title  to  them ;  and  £80  was  paid  to  him  as  a  de- 
^"*  posit.  It  was  afterwards  discovered,  that,  as  to  one  of  the  lots,  a 
good  title  could  not  be  made;  and  it  was  then  subsequently  agreed 
by  the  defendant,  that  he  would  waive  the  necessity  of  a  good  title 
being  made  as  to  that  lot ;  and  the  plaintiff  afterwards  delivered  pos- 
session of  the  whole  of  the  lots  to  the  defendant,  which  he  accepted, 
but  now  refuses  to  pay  the  remainder  of  the  purchase-money,  and  he 
relies  on  the  objection  to  the  title.  By  the  general  rules  of  the  com- 
mon law,  if  there  be  a  contract  which  has  been  reduced  into  writing, 
verbal  evidence  is  not  allowed  to  be  given  of  what  passed  between 
the  parties,  either  before  the  written  instrument  w-as  made,  or  during 
the  time  that  it  was  in  a  state  of  preparation,  so  as  to  add  to  or  sub- 
tract from,  or  in  any  manner  to  vary  or  qualify  the  written  contract ; 
but  after  the  agreement  has  been  reduced  into  writing,  it  is  competent 
to  the  parties,  at  any  time  before  breach  of  it,  by  a  new  contract  not 
in  writing,  either  altogether  to  waive,  dissolve,  or  annul  the  former 
agreements,  or  in  any  manner  to  add  to,  or  subtract  from,  or  vary  or 
qualify  the  terms  of  it,  and  thus  to  make  a  new  contract ;  which  is 
to  be  proved,  partly  by  the  written  agreement,  and  partly  by  the  subse- 
quent verbal  terms  engrafted  upon  what  will  be  thus  left  of  the  writ- 
ten agreement.  And  if  the  present  contract  was  not  subject  to  the 
control  of  any  act  of  Parliament,  we  think  that  it  would  have  been 
competent  for  the  parties,  by  word  of  mouth,  to  dispense  with  re- 
quiring a  good  title  to  be  made  to  the  lot  in  question,  and  that  the 
action  might  be  maintained.  But  the  Statute  of  Frauds  has  made  cer- 
tain regulations  as  to  contracts  for  the  sale  of  lands.  We  think  the 
object  of  the  Statute  of  Frauds  was  to  exclude  all  oral  evidence  as  to 
contracts  for  the  sale  of  lands,  and  that  any  contract  which  is  sought 
to  be  enforced  must  be  proved  by  writing  only.  But,  in  the  present 
case,  the  written  contract  is  not  that  which  is  sought  to  be  enforced, 
it  is  a  new  contract  which  the  parties  have  entered  into,  and  that  new 
contract  is  to  be  proved,  partly  by  the  former  written  agreement,  and 
partly  by  the  new  verbal  agreement.  .  .  .  The  contract  ...  is  not 
wholly  a  contract  in  writing."* 


ASHLEY  V.  ASHLEY  (1855). 
4  Gray  rg/. 

Shaw,  C.  J. :      "This  is  an  action  brought  to  recover  damages  for 

a  disturbance  of  the  plaintiff's  easement,    in  stopping  a  water   course 

through    land    of   the    defendant,    bv   which    the    plaintiff's    land 

pr /» c 

was    rendered   wet   and   unproductive,   and   by   whfch    a   right   of 
way  in  other  land  of  the  defendant  was  rendered  miry  and  impassable. 

4 — Compare  the  authorities  cited   in   W.,   §  ;!44i. 


628  PAROL    EVIDENCE   RULE.  No.  565. 

...  It  appeared  that  the  plaintiff's  lot  had  been  set  off  to  his 
mother,  as  dower,  that  the  plaintiff  took  a  share  in  the  reversion  by- 
descent,  and  had  acquired  the  rights  of  the  other  heirs  by  purchase.  .  .  . 
The  plaintiff,  in  order  to  establish  the  right  of  way,  alleged  in  his 
declaration,  to  have  been  disturbed  by  the  stopping  of  the  drain  or 
watercourse,  relied  on  a  parol  reservation  made  by  his  mother,  at  the 
time  of  selling  the  land,  under  a  license  of  court,  as  administratrix 
of  her  husband,  for  the  payment  of  debts;  and  offered  to  show  that 
when  the  deed  was  made  by  the  administratrix  to  the  defendant,  there 
being  no  way  reserved,  the  defendant  assured  her  or  her  agent  that  she 
should  have  a  right  of  way  for  the  use  of  her  lot,  now  held  by  the 
plaintiff,  as  if  it  were  reserved.  The  judge  had  ruled  that,  by  force 
and  effect  of  the  deed  given  by  the  administratrix  to  the  defendant, 
he  had  the  land  free  from  any  servitude  in  favor  of  the  upper  lot,  or  any 
right  to  a  watercourse  over  that  of  the  defandant;  and  that,  if  such 
servitude  existed  at  all,  it  had  arisen  since  that  time,  by  adverse  use 
and  enjoyment  for  the  term  of  twenty  years.  Upon  this  point,  the 
evidence  offered  by  the  plaintiff  was,  that  when  the  agent  of  the  ad- 
ministratrix delivered  to  the  defendant  the  deed,  he  stated  that  it  re- 
served no  right  of  way  to  her  own  lot,  and  that  the  defendant  then 
said  she  might  pass  over  the  land  as  much  as  she  pleased,  as  much  as 
if  the  right  of  way  was  in  the  deed.  Here  the  question  was  whether 
the  right  of  way  could  be  established  by  twenty  years'  adverse,  con- 
tinued and  uninterrupted  enjoyment.  The  judge,  against  the  objection 
of  the  defendant,  held  that  this  evidence  was  competent,  not  because 
a  right  of  way  can  be  created  by  a  parol  grant,  but  to  show  that  the 
plaintiff  commenced  the  actual  use  of  the  way  under  a  claim  of  right. 
The  Court  are  of  opinion  that  this  was  correct,  for  the  purpose  and 
to  the  extent,  to  which  it  was  limited."^ 


2.    Judicial  Acts, 
a.     Record  of  a  Judgment. 

Sir  F.  Pollock  and  Mr.  F.  W.  Maitland,  History  of  the  English 
Law,  II,  666  (1895)  :  "The  distinction  that  we  still  draw  between  'courts 
of  record'  and  courts  that  are  'not  of  record'  takes  us  back  to  very 
"""  early  times  when  the  King  asserts  that  his  own  word  as  to  all  that 
has  taken  place  in  his  presence  is  incontestible.  This  privilege  he  com- 
municates to  his  own  special  court ;  its  testimony  as  to  all  that  is  done 
before  it  is  conclusive.  If  any  question  arises  as  to  what  happened  on 
a  previous  occasion  the  justices  decide  this  by  recording  or  bearing 
record  (recordantur,  portant  recordum).  Other  courts,  as  we  have 
lately  seen,  may  and,  upon  occasion,  must  beai  record ;  but  their  records 

5 — Compare  the  authorities  cited  in  W.,  §  2446. 


No.  567.  JUDICIAL   ACTS — RECORD  OF   A   JUDGMENT.  629 

are  not  irrefragable ;  the  assertions  made  by  the  representative  dooms- 
men  of  the  shire-moot  may  be  contested  by  a  witness  who  is  ready  to 
fight.  We  easily  slip  into  saying  that  a  court  whose  record  is  incon- 
trovertible is  a  court  which  has  record  (habet  recordum)  or  is  a  court 
of  record,  while  a  court  whose  record  may  be  disputed  has  no  record 
(^non  habet  recordum)  and  is  no  court  of  record.  In  England  only 
the  King's  court — in  course  of  time  it  becomes  several  courts — is  a 
court  of  record  for  all  purposes,  though  some  of  the  lower  courts  'have 
record'  of  some  particulars,  and  sheriffs  and  coroners  'have  record' 
of  certain  transactions,  such  as  confessions  of  felony.  In  the  old  days, 
when  as  yet  there  were  no  plea  rolls,  the  justices  when  they  bore  record 
relied  upon  their  memories.  From  Normandy  we  obtain  some  elaborate 
rules  as  to  the  manner  in  which  record  is  to  be  borne  or  made ;  for 
example  a  record  of  the  Exchequer  is  made  by  seven  men,  and,  if  six 
of  them  agree,  the  voice  of  the  seventh  may  be  neglected.  In  England 
at  a  yet  early  time  the  proceedings  of  the  royal  court  were  committed 
to  writing.  Thenceforward  the  appeal  to  its  record  tended  to  become 
a  reference  to  a  roll,  but  it  was  long  before  the  theory  was  forgotten 
that  the  rolls  of  the  court  were  m.ere  aids  for  the  memories  of  the 
justices;  and  as  duplicate  and  triplicate  rolls  were  kept  there  was  al- 
ways a  chance  of  disagreement  among  them.  A  line  is  drawn  between 
'matter  of  record'  and  'matter  in  pays'  or  matter  which  lies  in  the 
cognizance  of  the  country  and  can  therefore  be  established  by  a  verdict 
of  jurors."* 


SAYLES  V.  BRIGGS   (1842). 
4  Mete.  421,  42^. 

Trespass  upon  the  case  for  malicious  prosecution.  The  declaration 
contained  three  counts,  charging  three  distinct  prosecutions  of  the 
plaintiff  by  the  defendant.  ...  To  support  the  third  count,  the 
**"'  plaintiff  gave  in  evidence  a  complaint  to  a  magistrate,  signed  and 
sworn  to  by  the  defendant,  charging  the  plaintiff  with  forging  a  record 
of  a  magistrate ;  but  he  did  not  give  in  evidence  any  warrant  issued 
on  said  complaint,  nor  prove  that  he  was  arrested  and  held  to  answer 
to  the  complaint,  except  by  parol  testimony.     The  plaintiff  was  arraigned 

6 — Coke     upon     Littleton,     260     (1628):  any    end    of    controversies,    which    should 

"Recordum     is     a     memorial     or     remem-  be    inconvenient." 

brance   in   rolles   of  parchment  of  the   pro-  L.    C.    J.    Mansfield,    in    Jones    v.    Ran- 

ceedings    and    acts   of   a    Court    of   justice.  dall,     Cowp.     17     (1774):       "The    minutes 

.    .    .    And    the    rolles,    being    the    records  of    the    judgment    are    the    solemn    judg- 

or   memorialls   of  the   judges   of  Courts   of  ment   itself." 

record,     import    in     them     such     incontrol-  Nishef,    J.,    in    Bryant    v.    Ozcen,    1    Ga. 

lable   credit   and   veritie  as   they   admit   no  355,    367     (1846):      "The    record    is    tried 

averment,  plea,  or  proofs  to  the  contrarie;  by    inspection;    and    if    the    judgement    does 

.    .    .    and    the    reason    hereof   is    apparent,  not    there    appear,    the    conclusion    is    that 

for    otherwise     [as    our     old    authors    say,  none  has   been  rendered." 
and    that    truly]     there    should    never    be 


630  PAROL   EVIDENCE   RULE.  No.  567. 

before  a  justice  of  the  peace,  who  made  the  following  record,  and 
no  other,  of  the  proceedings  before  him:  "Berkshire  ss.  At  a  jus- 
tice's court  holden  before  me,  at  house  of  Franklin  Bartlett,  in  Adams, 
on  Wednesday,  13th  day  of  February  1839,  at  one  of  the  clock  in  the 
afternoon,  Commonwealth  vs.  Franklin  O.  Sayles,  on  the  complaint  of 
Peter  Briggs,  Esq.,  for  forgery.  After  full  hearing  in  the  case,  the 
complainant  withdrew  his  prosecution,  and  it  was  thereupon  ordered 
by  me  the  said  justice,  that  the  said  Franklin  O.  be  discharged."  The 
plaintiff  offered  parol  testimony  of  the  said  justice  and  others,  that 
he  was  arraigned  on  all  the  aforesaid  complaints,  and  pleaded  to  the 
same,  and  that  a  hearing  thereon  was  had  before  said  justice,  who 
discharged  the  plaintiff.  The  defendant  objected  to  the  admission  of 
this  testimony.  But,  as  it  appeared  that  no  record  had  been  made, 
by  said  justice,  of  the  proceedings  had  before  him,  except  that  above 
set  forth;  and  as  it  further  appeared  that  said  justice  was  no  longer 
a  justice  of  the  peace  under  the  commission  held  by  him  at  the  time 
of  the  trial  and  hearing  of  said  cases  before  him,  and  that  he  had  de- 
clined to  qualify  himself  as  a  justice  under  a  new  commission  which 
he  had  since  received,  and'  had  also  declined  to  make  any  further  record 
in  relation  to  said  proceedings;  the  judge,  before  whom  the  trial  was 
had,  ruled  that  it  was  competent  for  the  plaintiff  to  introduce  parol 
evidence,  if  not  contradictory  to  said  record,  to  prove  the  issuing  of 
the  warrant  on  the  third  complaint,  and  also  that  the  plaintiff  was 
arraigned  on  all  said  complaints,  and  pleaded  to  the  same,  and  that, 
upon  a  hearing  before  said  justice,  he  was,  by  said  justice,  discharged 
therefrom.  The  proposed  evidence  was  thereupon  admitted,  and  a 
general  verdict  was  returned  for  the  plaintiff,  which  is  to  be  set  aside, 
and  a  new  trial  granted,  if  said  ruling  was  erroneous. 

Hubbard,  J.:  "A  record  is  a  memorial  or  history  of  the  judicial 
proceedings  in  a  case,  commencing  with  the  writ  or  complaint,  and 
terminating  with  the  judgment,  and  the  design  is,  not  merely  to  settle 
the  particular  question  in  difference  between  the  parties,  or  the  govern- 
ment and  the  subject,  but  to  furnish  fixed  and  determinate  rules  and 
precedents  for  all  future  like  cases.  A  record,  therefore,  must  be  pre- 
cise and  clear,  containing  proof  within  itself  of  every  important  fact 
on  which  the  judgment  rests;  and  it  cannot  exist  partly  in  writing  and 
partly  in  parol.  Its  allegations  and  facts  are  not  the  subject  of  con- 
tradiction. They  are  received  as  the  truth  itself,  and  no  averment  can 
be  made  against  them  nor  can  they  be  varied  by  parol.  .  .  . 

"But  records,  like  other  documents,  are  exposed  to  casualties,  and, 
like  them,  may  also  be  misplaced  or  lost;  or  owing  to  the  accidents 
which  continually  occur,  the  record  may  not,  in  a  given  instance,  have 
been  extended  from  the  minutes  of  the  proceedings.  And  the  cases  are 
abundant  to  show  that  a  lost  record,  like  a  lost  deed,  may  be  proved 
by  parol ;  and  that  the  minutes  may  be  introduced,  where  the  record 
has  not  been  drawn  out  in  extenso,  as  containing  the  elements  of  the 


No.  568.  B.       VARYING  THE  TERMS  OF  A  DOCUMENT.  631 

record,  and,  in  truth,  for  the  time  being,  the  record  itself.  .  .  .  But  in 
the  present  case,  no  facts  or  circumstances  were  introduced  tending  to 
prove  either  the  loss  of  records,  or  the  existence  of  any  other  record 
than  the  one  produced;  nor  any  minutes,  from  which  another  record 
might  be  completed.  On  the  other  hand,  it  appears  that  no  record, 
other  than  the  one  in  evidence,  was  ever  made,  and  that  no  minutes 
were  taken,  at  the  time  of  the  alleged  trial,  from  which  such  further  rec- 
ord could  be  made.  It  is  impracticable,  therefore,  to  support  the  in- 
troduction of  this  testimony  on  the  ground  that  the  record  or  a  part  of 
it  was  lost. 

"Again,  it  is  argued  that  this  testimony  should  be  received  from 
necessity,  as  there  is  no  way  by  which  the  plaintiff  can  obtain  re- 
dress, and  that  this  is  the  best  evidence  which  now  exists.  But  in  my 
judgment  it  will  be  productive  of  far  less  mischief  for  an  individual 
to  suffer  from  the  neglect  or  misfortune  of  an  officer  in  not  making  a 
judicial  record  than  to  establish  a  precedent  that  the  record  itself  or 
a  part  of  it  may  be  proved  by  parol, — that  it  may  speak  one  language 
to-day  and  another  to-morrow,  depending  on  the  different  witnesses 
who  are  called  or  on  their  changing  recollections.  And  without  pre- 
scribing a  rule  for  a  case  where  a  magistrate  might  by  the  act  of  God 
be  deprived  of  the  opportuunity  of  making  even  any  minutes  of  pro- 
ceedings before  him  from  which  a  record  could  be  made  (if  such  a 
case  should  ever  occur),  we  are  of  opinion  that  the  want  of  a  judicial 
record  cannot  be  supplied  by  parol  evidence ;  and  that  the  rules  which 
apply  to  the  admission  of  testimony  to  prove  the  contents  of  a  lost 
record,  or  to  the  introduction  of  minutes  by  which  the  record  may  be 
extended,  have  no  real  bearing  on  a  case  like  the  present,  where  no 
such  loss  ever  took  place  and  no  such  minutes  ever  were  made.  A 
party  who  is  to  be  affected  by  the  record  will  in  the  exercise  of  ordi- 
nary care  see  that  it  is  correctly  made  up;  and  if  the  officer  should 
neglect  or  refuse  to  perform  his  duty,  he  can  be  compelled  by  man- 
damus to  make  a  true  record. 

"There  is,  then,  no  record  of  an  acquittal  on  the  charge  contained 
in  the  second  count,  nor  of  the  issuing  of  a  warrant,  or  of  an  acquittal, 
on  the  third  count ;  and,  for  the  reasons  given,  the  want  of  such  a 
record  cannot  be  supplied  by  parol  proof." 


PRUDEN  V.  ALDEN    (1839). 
2S  Pick.  184,  187. 

Writ  of  right,   in  which  the  demandants  claimed   title  as  heirs  of 
their  father,  Peleg  Gulliver,  who  died  seised  of  the  demanded  prem- 
ises, in  September  1806.  The  tenant  claimed  under  a  deed  dated  in 
November    1807,   from   Salome   Gulliver,   who  was  the  widow  of 
Peleg,   and   administratrix  of   his   estate.     This  deed   recited,   that   "a 


632  PAROL   EVIDENCE   RULE.  No.  568. 

license  was  obtained  by  an  order  of  the  Court  of  Common  Pleas,  begun 
and  held  at  Plymouth,  on  the  second  Tuesday  of  August  1807,  to  make 
sale  of  the  real  estate  of  said  deceased,  so  far  as  should  be  necessary 
to  satisfy  the  just  debts  by  him  owing  at  the  time  of  his  death,  and 
for  incidental  charges."  ...  It  appeared,  that  it  was  the  practice  of 
the  judge  of  probate,  of  the  county  of  Plymouth,  from  1807  to  1810, 
to  consult  one  of  the  judges  of  the  Court  of  Common  Pleas,  at  the 
sittings  of  that  court,  in  regard  to  the  application  for  licenses,  and 
after  obtaining  his  assent  thereto,  to  hand  the  applications  and  the  direc- 
tions of  the  court  respecting  them,  to  the  clerk  at  the  close  of  the 
terms,  to  be  certified;  that  the  clerk,  at  that  time,  had  become  care- 
less and  inattentive  to  his  official  duties,  and  a  large  portion  of  the 
records  was  made  up  unskilfully  by  his  wife;  that  the  docket  for  the 
August  term  1807  was  not  to  be  found;  that  the  present  clerk,  having 
found  the  papers  in  his  office  to  be  irregularly  and  confusedly  filed, 
arranged  them  in  order  from  the  year  1800  to  the  time  of  his  appoint- 
ment; that  on  the  files  there  are  seven  minutes  for  licenses  for  the 
sale  of  real  estate  at  the  August  term  1807,  and  as  many  records  of 
licenses  granted  for  that  purpose,  but  that  no  record  is  to  be  found 
of  any  license  granted  to  Salome  Gulliver  for  that  purpose,  and  no 
minutes  or  application  on  the  files,  from  which  such  a  record  might 
be  made  up.  .  .  .  The  demanded  premises  were  sold  to  the  tenant,  at 
the  time  and  place  mentioned  in  the  notices  posted  up  by  Delano,  the 
sum  named  in  the  deed  being  the  highest  bid  made  therefor.  If,  upon 
these  facts,  the  Court  should  be  of  opinion,  that  the  jury  would  be 
authorized  to  find,  that  there  was  a  legal  license  granted  to  sell  the 
estate,  the  demandants  were  to  become  nonsuit;  otherwise,  the  tenant 
was  to  be  defaulted. 

Shaw,  C.  J. :  "It  being  very  clear,  that  the  administratrix  could 
make  no  valid  sale,  without  a  license,  the  title  of  the  tenant  depends 
upon  proof  of  such  license.  It  is  contended  on  the  part  of  the  de- 
mandants, that  there  is  no  legal  proof  of  such  a  license  having  been 
granted.  We  think  it  may  be  admitted,  as  contended  for  by  the  de- 
mandants, that  a  license  by  the  Court  of  Common  Pleas  must  be  proved 
by  its  records.  But  the  Court  are  to  take  notice  how  the  records  of 
their  own  and  of  other  courts  are  in  fact  made  and  kept.  The  clerk 
intrusted  with  the  duty  of  keeping  records,  must  of  necessity  take  down 
the  doings  of  the  court,  in  short  and  brief  notes ;  this  he  usually  does 
in  a  minute  book  called  the  docket,  from  which  a  full,  extended  and 
intelligible  record  is  afterwards  to  be  made  up.  But  until  they  can 
be  made  up,  these  short  notes  must  stand  as  the  record;  and  if,  in  the 
mean  time,  through  the  death  or  sickness  of  the  clerk,  or  other  cas- 
ualty, they  are  lost,  it  must  be  deemed  a  loss  of  the  records,  and  sec- 
ondary proof  may  be  offered  of  their  contents.  ...  In  the  present  case, 
the  license  relied  upon  is  supposed  to  have  been  granted  at  the  August 
term,  1807,  and  is  so  recited  in  the  deed  to  the  tenant;  and  it  is  proved, 


No.  569.  B.      VARYING  THE  TERMS  OF  A  DOCUMENT.  633 

that  the  docket  of  that  term  is  missing.  The  recital  in  the  deed,  cor- 
roborated by  many  other  circumstances,  together  with  more  than  thirty 
years'  undisturbed  possession  by  the  tenant  under  a  deed  which  could 
only  be  good  by  force  of  such  license,  appears  to  the  Court  to  be  suffi- 
cient proof  of  the  existence  and  loss  of  the  record,  to  let  in  secondary 
evidence.  And  from  the  evidence  thus  offered,  the  Court  are  satisfied, 
that  such  license  was  in  fact  granted,  and  some  minute  of  it  entered 
by  the  clerk,  which  would  have  been  sufficient  to  warrant  him  in  mak- 
ing up  an  extended  record,  according  to  the  usual  course  of  business 
in  his  office."^ 


b.     Verdict  of  a  Jury. 

ROBBINS  V.  WINDOVER    (1802). 
2  Tyl.  II,  13. 

Motion  for  new  trial,  stating  that  some  of  the  Jurors  of  the  Jury 
who  tried  the  cause,  after  the  cause  was  submitted  to  them,  witnessed 
or  related  to  others  of  the  panel  certain  matters  and  things  in 
relation  to  the  issue  not  witnessed  or  related  on  the  trial  of  the 
cause  in  Court.  .  .  .  Chauncey  Langdon,  for  defendant,  offered  to  read 
the  affidavit  of  one  of  the  Jurors.  To  the  reading  of  this  affidavit  an 
objection  was  taken.  .  .  . 

Tyler,  J. :  "Upon  the  point  in  question,  the  Court  are  decidedly 
of  opinion,  that  the  affidavit  cannot  be  admitted  to  be  read.  The  com- 
mon law  requires  that  the  twelve  jurors  shall  unite  in  a  verdict.  Who- 
ever considers  the  variety  and  intricacy  of  causes  they  have  to  deter- 
mine, the  difficulty  of  bringing  twelve  persons  of  different  habits  and 
modes  of  thinking,  and  of  unequal  abilities,  fortuitously  elected,  to 
concur  in  opinion,  will  perceive  the  wisdom  of  the  Legislature  in  direct- 
ing that  their  deliberations  should  be  secret ;  for  it  was  to  be  expected, 
that  in  bringing  about  a  union  of  sentiment  in  the  panel,  the  subject 
under  consideration  would  be  presented  in  various  lights ;  that  futile 
objections  would  be  met  with  inconclusive  arguments,  theory  opposed 
to  practice,  and  legal  science  to  common  sense ;  that  the  reputations 
of  witnesses  would  be  scanned,  the  character  of  parties  too  often  ad- 
verted to,  and  the  whole  investigation  illustrated  by  relations  of  what 
each  juror  had  heard  or  known  in  cases  supposed  similar;  that  the 
warmth  of  debate  would  excite  an  obstinacy  of  opinion,  and  a  re- 
luctant and  tardy  assent  to  the  verdict,  perhaps  drawn  from  some  one, 
which,  on  after  reflection,  might  leave  in  the  juror's  mind  a  doubt  of 
its  rectitude.  It  would  be  of  dangerous  tendency  to  admit  jurors  by 
affidavit  to  detail  these  deliberations  of  the  jury  room,  to  testify  to  sub- 
jects not  perfectly  comprehended  at  the  time,  or  but  imperfectly  recol- 

7 — Compare  the  authorities  cited   in   W.,  §  2450. 


634  PAROL  EVIDENCE  RULE.  No.  569, 

lected.  From  a  natural  commiseration  for  the  losing  party,  or  a  desire 
to  apologize  for  the  discharge  of  an  ungrateful  duty,  after  the  juror 
had  been  discharged  from  office,  he  would  be  too  apt  to  intimate,  that 
if  some  part  of  the  testimony  had  been  adverted  to,  or  something  not 
in  evidence  omitted,  his  opinion  would  have  been  otherwise,  whilst 
others  of  the  panel,  with  different  impressions  or  different  recollec- 
tions, might  testify  favourably  for  the  prevailing  party.  This  would 
open  a  novel  and  alarming  source  of  litigation,  and  it  would  be  diffi- 
cult to  say  when  a  suit  was  terminated."^ 


HAAK  V.  BREIDENBACH    (1817). 
3  S.&  R.  204. 

Breidenbach,  the  plaintiff  below,  brought  this  action  upon  an  arbi- 
tration bond  entered  into  by  the  defendant,  on  the  4th  August  1786, 
to  abide  the  award  of  arbitrators  for  damages  alleged  to  have 
^'"  been  done  prior  to  that  time,  by  the  defendant,  to  the  bark  mill 
and  spring  of  the  testator,  by  damming  up  a  streamlet  of  water  on  the 
defendant's  land.  The  defendant  pleaded  no  award;  and  recovery  in  a 
former  action  in  the  Common  Pleas  of  Dauphin  county  (in  which 
Lebanon  county  was  then  included),  for  the  same  cause  of  action. 
The  plaintiff  replied,  and  set  out  the  award  for  the  payment  of  120 
pounds;  and  assigned  for  breach,  the  non-payment  thereof.  To  the 
second  plea,  he  replied  no  such  recovery.  In  support  of  the  plea  of  a 
former  recovery,  the  defendant  gave  in  evidence  the  record  of  a  recov- 
ery, in  an  action  on  the  case  against  him  brought  to  November  Term 
1788,  by  the  testator  in  the  court  above  mentioned,  in  which  the  dec- 
laration was  for  damming  up  a  stream  of  water  on  the  defendant's 
land,  on  the  loth  August  1785,  by  which  the  testator's  bark  mill  and 
spring  were  overflowed  and  injured,  whereby  he  lost  the  profits  and 
advantages  thereof,  from  the  loth  August  1785,  to  the  3d  November 
1788,  when  that  suit  was  instituted.  The  plaintiff  then  offered  the  de- 
position of  Stacy  Potts,  one  of  the  jurors  who'  tried  the  cause,  to  show, 
that  on  that  trial,  the  plaintiff  waived  all  claim  for  damages  from  the 
loth  August  1785,  to  the  4th  August  1786;  that  the  jury  was  directed  by 
the  court,  on  account  of  the  arbitration,  not  to  include  that  period  of 
time  in  estimating  the  damages,  and  that  they  therefore  only  included 
the  damages  sustained  subsequently  to  the  4th  August  1786.  This  evi- 
dence was  objected  to  by  the  defendant,  but  admitted  by  the  court,  and 
a  bill  of  exceptions  taken.  .  .  . 

TiLGHMAN,  C.  J.:  "The  question  in  this  case  in  the  court  below, 
was  whether  the  plaintiff  had  recovered  damages  in  a  former  action 
for  a  nuisance  continued  from  loth  August  1785,  to  4th  August  1786. 
In  order  to  prove  that  he  had,  the  defendant  gave  in  evidence  the  rec- 

8 — Compare  the  authorities  cited  in  W.,   §  2349. 


No.  572.  B.      VARYING  THE  TERMS  OF  A  DOCUMENT.  635 

ord  of  a  recovery  in  a  former  action,  in  which  a  continuando  was  laid, 
including  the  time  in  dispute.  On  the  other  hand,  the  plaintiff  offered 
and  the  court  admitted  parol  evidence  to  show  that  on  the  trial  of  the 
former  action  the  plaintiff  gave  up  part  of  the  time  laid  in  the  continu- 
ando, viz.,  from  loth  August  1785,  to  4th  August  iyf^6,  and  received 
damages  only  for  a  time  prior  to  loth  August  1785.  The  error  assigned 
is  in  the  admission  of  the  parol  evidence.  In  trespass  with  a  continu- 
ando, the  plaintiff  may  waive  the  continuando,  and  prove  a  trespass  at 
any  time  before  the  suit  brought,  or  he  may  give  evidence  which  goes 
to  only  part  of  the  time  laid  in  the  continuando.  ...  If  the  plaintiff 
did  not  in  truth  recover  in  the  former  action  for  the  time  between  loth 
August  1785,  and  4th  August  1786,  he  will  suffer  wrong  unless  he  re- 
covers in  this  action.  And  if  he  might,  on  the  former  trial,  confine 
himself  to  part  of  the  time  laid  in  the  continuando,  I  see  not  why  he 
may  not  now  be  permitted  to  show  that  he  did  not  confine  himself,  be- 
cause this  evidence  does  not  contradict  the  record.  Inasmuch,  then,  as 
the  justice  of  this  case  could  not  be  obtained  but  by  admission  of  the 
parol  evidence,  I  am  of  opinion  that  it  was  properly  admitted  and  that 
the  judgment  should  be  affirmed."^ 


VAISE  V.  DELAVAL    (1785). 
I  T.  R.  II. 

Motion  by  Law  for  a  rule  to  set  aside  a  verdict,  upon  an  affidavit 
of  two  jurors,  who  swore  that  the  jury,  being  divided  in  their  opinion, 

tossed  up,  and  that  the  plaintift''s  friends  won. 
"'^  Lord  Mansfield,  C.  J.:     "The  Court  cannot  receive  such  an 

affidavit  from  any  of  the  jurymen  themselves,  in  all  of  whom  such  con- 
duct is  very  high  misdemeanor.  But  in  every  such  case  the  Court  must 
derive  their  knowledge  from  some  other  source ;  such  as  from  some 
person  having  seen  the  transaction  through  a  window,  or  by  some  such 
other  means."^" 


WRIGHT  V.  TELEGRAPH  CO.    (1866). 
20  la.  195,  210. 

Suit    to    recover    damages    for    the    injury    sustained    hy    him    on 

account  of  the  casualties  aforesaid.     The  cause  was  tried  to  a  jury  and 

resulted  in  a  verdict  of  three  hundred  and  fortv-five  dollars  and 

"*"      sixty-six   cents   for  plaintiff.     The  defendant  moved   for  a   new 

trial,    based   mainly    upon    alleged    erroneous   giving    and    refusing   in- 

9 — Compare  the  authorities  cited   in   W.,  misconductl     cannot    he     received.       It    is 

552351.    2.149,    n.    s.  sin^ilar    indeed    that    almost    the    only   evi- 

10 — Mansfield,    C.   J.,    in    Owen    v.    War-  dence  of  which   the  case  admits  should   be 

burton,   i   B.   &  P.   N.   R.   326,   329   (1807):  shut    out;    but   considering   the    arts    which 

"The   affidavit    of  a   juryman    [to   a   jury's  might    be    used    if    a    contrary    rule    were 


636  PAROL   EVIDENCE   RULE.  No.  572. 

structions,  misconduct  of  the  jury,  and  newly  discovered  evidence.  In 
support  of  the  alleged  misconduct  of  the  jury,  the  defendant  filed  the 
affidavits  of  four  of  the  jurors  who  tried  the  cause.  Each  affidavit 
stated,  in  substance,  that,  in  order  to  arrive  at  the  plaintiff's  damages, 
it  was  agreed  that  each  juror  should  mark  down  such  sum  as  he 
thought  proper  to  allow ;  that  the  aggregate  should  be  divided  by 
twelve,  and  the  quotient  should  be  the  verdict;  which  agreement  was 
carried  out  by  each  juror,  and  the  quotient  thus  obtained  was  returned 
to  the  court  as  the  verdict  of  the  jury.  The  plaintiff  then  moved  to 
strike  the  affidavits  of  the  jurors  from  the  files,  because  they  could 
not  be  read  as  evidence  in  support  of  the  motion  for  a  new  trial. 
This  motion  to  strike  was  sustained  and  the  motion  for  a  new  trial 
overruled.     The  defendant  excepted  and  appeals. 

Cole,  J.:  "The  first  question  presented  by  the  transcript,  and 
argued  by  counsel,  is,  whether  affidavits  of  jurors  may  be  read  in 
support  of  a  motion  for  a  new  trial,  based  upon  the  alleged  miscon- 
duct of  the  jury,  in  the  manner  of  arriving  at  the  verdict.  .  .  . 

"While  we  do  not  feel  entirely  confident  of  its  correctness,  nor 
state  it  without  considerable  hesitation,  yet  we  are  not  without  that 
assurance  which,  under  the  circumstances,  justifies  us  in  laying  down 
the  following  as  the  true  rule:  That  affidavits  of  jurors  may  be  re- 
ceived for  the  purpose  of  avoiding  the  verdict,  to  show  any  matter  oc- 
curring during  the  trial  or  in  the  jury  room,  which  does  not  essentially 
inhere  in  the  verdict  itself,  as  that  a  juror  was  improperly  approached 
by  a  party,  his  agent,  or  attorney;  that  witnesses  or  others  conversed 
as  to  the  facts  or  merits  of  the  cause,  out  of  court  and  in  the  pres- 
ence of  jurors;  that  the  verdict  was  determined  by  aggregation  and 
average  or  by  lot,  or  game  of  chance  or  other  artifice  or  improper  man- 
ner; but  that  such  affidavit  to  avoid  the  verdict  may  not  be  received 
to  show  any  matter  which  does  essentially  inhere  in  the  verdict  itself, 
as  that  the  juror  did  not  assent  to  the  verdict;  that  he  misunderstood 
the  instructions  of  the  Court;  the  statements  of  the  witnesses  or  the 
pleadings  in  the  case;  that  he  was  unduly  influenced  by  the  state- 
ments or  otherwise  of  his  fellow  jurors,  or  mistaken  in  his  calculations 
or  judgment,  or  other  matter  resting  alone  in  the  juror's  breast.  That 
the  verdict  was  obtained  by  lot,  for  instance,  is  a  fact  independent  of 
the  verdict  itself,  and  which  is  not  necessarily  involved  in  it.  While 
every  verdict  necessarily  involves  the  pleadings,  the  evidence,  the  in- 
structions, the  deliberation,  conversations,  debates,  and  judgments  of 
the  jurors  themselves;  and  the  effect  or  influence  of  any  of  these  upon 
the  juror's  mind,  must  rest  in  his  own  breast,  and  he  is  and  ought  to 

to  prevail,  we  think  it  necessary  to  ex-  parties,  and  not  being  able  to  bring  over 
elude  such  evidence.  If  it  were  un-  his  companions  to  his  opinion,  might  pro- 
derstood  to  be  the  law  that  a  juryman  pose  a  decision  by  lot,  with  a  view  after- 
might  set  aside  a  verdict  by  such  evi-  wards  to  set  aside  the  verdict  by  his  own 
dence,  it  might  sometimes  happen  that  a  affidavit,  if  the  decision  should  be  against 
juryman,    being    a    friend    to    one    of    the  him." 


No,  572.  B.      VARYING  THE  TERMS  OF  A  DOCUMENT.  637 

be  concluded  thereon  by  his  solemn  assent  to  and  rendition  of  the  ver- 
dict (vcrcdictum — a  true  declaration).  To  allow  a  juror  to  make  affi- 
davit against  the  conclusiveness  of  the  verdict  by  reason  of  and  as  to 
the  effect  and  influence  of  any  of  these  matters  upon  his  mind,  v^hich 
in  their  very  nature  are,  though  untrue,  incapable  of  disproof,  would 
be  practically  to  open  the  jury  room  to  the  importunities  and  appli- 
ances of  parties  and  their  attorneys,  and,  of  course,  thereby  to  unsettle 
verdicts  and  destroy  their  sanctity  and  conclusiveness.  But  to  receive 
the  affidavit  of  a  juror  as  to  the  independent  fact  that  the  verdict  was 
obtained  by  lot,  or  game  of  chance,  or  the  like,  is  to  receive  his  testi- 
mony as  to  a  fact,  which,  if  not  true,  can  be  readily  and  certainly  dis- 
proved by  his  fellow  jurors;  and  to  hear  such  proof  would  have  a 
tendency  to  diminish  such  practices  and  to  purify  the  jury  room,  by 
rendering  such  improprieties  capable  and  probable  of  exposure,  and 
consequently  deterring  jurors  from  resorting  to  them.  .  .  .  While  it  is 
certainly  illegal  and  reprehensible  in  a  juror,  to  resort  to  lot  or  the 
like  to  determine  a  verdict,  which  ought  always  to  be  the  result  of 
a  deliberate  judgment,  yet  such  resort  might  not  evince  more  turpi- 
tude tending  to  the  discredit  of  his  statement  than  would  be  evinced 
by  a  person  not  of  the  jury,  in  the  espionage  indicated  by  Lord  Mans- 
field and  necessary  to  gain  a  knowledge  of  the  facts  to  enable  him 
to  make  the  affidavit.  At  all  events  the  superior  opportunities  of 
knowledge  and  less  liability  to  mistake,  which  the  juror  has  over  the 
spy,  would  entitle  his  statement  to  the  most  credit.  And  if,  as  is  uni- 
versally conceded,  it  is  the  fact  of  improper  practice,  which  avoids  the 
verdict,  there  is  no  reason  why  a  Court  should  close  its  ears  to  the 
evidence  of  it  from  one  class  of  persons,  while  it  will  hear  it  from 
another  class,  which  stands  in  no  more  enviable  light  and  is  certainly 
no  more  entitled  to  credit.  Nor  does  the  consideration  of  the  affi- 
davits of  jurors,  for  the  purposes  stated,  contravene  sound  public  pol- 
icy. It  is  true,  however,  that  public  policy  does  require  that  when  a 
juror  has  discharged  his  duty  and  rendered  a  verdict,  such  verdict 
should  remain  undisturbed  and  unaffected  by  any  subsequent  change  of 
opinion  upon  any  fact  or  pretext  whatever;  and,  therefore,  a  juror 
should  not  be  heard  to  contradict  or  impeach  that  which,  in  the  legiti- 
mate discharge  of  his  duty,  he  has  solemnly  asseverated.  But  when 
he  has  done  an  act  entirely  independent  and  outside  of  his  duty  and 
in  violation  of  it  and  the  law,  there  can  be  no  sound  public  policy 
which  should  prevent  a  Court  from  hearing  the  best  evidence  of  which 
the  matter  is  susceptible,  in  order  to  administer  justice  to  the  party 
whose  rights  have  been  prejudiced  by  such  unlawful  act.  In  other 
words,  public  policy  protects  a  juror  in  the  legitimate  discharge  of 
his  duty,  and  sanctifies  the  result  attained  thereby;  but  if  he  steps 
aside  from  his  duty,  and  does  an  unlawful  act,  he  is  a  competent  wit- 
ness to  prove  such  fact,  and  thereby  prevent  the  sanction  of  the  law 
from  attaching  to  that  which  would  otherwise  be  colorably  lawful. 


638  PAROL   EVIDENCE   RULE.  No,  572. 

"We  are,  therefore,  of  the  opinion  that  the  District  Court  erred  in 
striking  from  the  files  and  refusing  to  consider  the  affidavits  of  the  four 
jurors,  that  the  verdict  vv^as  determined  by  each  juror  marking  down 
such  sum  as  he  thought  fit,  and  dividing  the  aggregate  by  tw^elve  and 
taking  the  quotient  as  their  verdict,  pursuant  to  a  previous  agreement 
to  accept  it  as  such.  These  affidavits,  uncontradicted,  are  sufficient  to 
sustain  the  motion  to  set  aside  the  verdict  and  grant  a  new  trial."^ 


REX  V.  WOODFALL    (1770). 
5  Burr.  2661,  266/. 

Lord  Mansfield,  C.  J.:  "This  comes  before  the  court  upon  two 
rules:  the  first  (obtained  by  the  defendant)  'To  stay  the  entering  up 
judgment  on  the  verdict  in  this  cause' ;  the  second  (obtained 
*  by  the  attorney  general,)  'That  the  verdict  may  be  entered  ac- 
cording to  the  legal  import  of  the  finding  of  the  jury.'  The  last  rule 
must,  from  the  nature  of  it,  be  first  discussed;  because  the  ground  of 
argument  upon  the  other  cannot  be  settled,  till  this  is  disposed  of.  .  *  . 
The  prosecution  is  an  information  against  the  defendant,  for  printing 
and  publishing  a  libel,  in  the  Public  Advertiser,  signed  'Junius' ;  the 
tenor  of  which  is  set  out,  with  proper  averments  as  to  the  meaning  of 
the  libel,  the  subject-matter,  and  the  persons,  concerning  which  and 
of  whom  it  speaks;  with  innuendoes  filling  up  all  the  blanks,  and  the 
usual  epithets.  .  .  .  There  was  no  doubt  but  that  the  evidence,  if  cred- 
ited, amounted  to  proof  of  printing  and  publishing  by  the  defendant. 
...  I  directed  the  jury  .  .  .  that  where  an  act  in  itself  indifferent, 
if  done  with  a  particular  intent  becomes  criminal;  there  the  intent 
must  be  proved  and  found:  but  where  the  act  is  in  itself  unlawful,  (as 
in  this  case),  the  proof  of  justification  or  excuse  lies  on  the  defendant; 
and  in  failure  thereof,  the  law  implies  a  criminal  intent.  The  jury 
staid  out  a  great  while,  many  hours.  At  last  they  came  to  my  house; 
(the  objection  of  its  being  out  of  the  county  being  cured  by  consent). 
In  answer  to  the  usual  question  put  by  the  officer,  the  foreman  gave 
their  verdict  in  these  words — 'Guilty  of  the  printing  and  publishing, 
only.'  Nothing  more  passed.  The  officer  has  entered  up  the  verdict 
literally;  without  so  much  as  adding  the  usual  words  of  reference,  to 
connect  the  verdict  with  the  matter  to  which  it  related.  Upon  this,  the 
two  rules  I  have  stated  were  moved  for.  Upon  that  obtained  by  the 
Attorney  General,  the  affidavit  of  a  juror  was  offered  by  the  counsel 
for  the  defendant.  But  we  were  all  of  opinion,  that  it  can  not  be  re- 
ceived. .  ,  .  Where  there  is  a  doubt,  upon  the  judge's  report,  as  to  what 
passed  at  the  time  of  bringing  in  the  verdict,  there  the  affidavits  of  jurors 

1 — Compare  the  authorities  cited  in  W.,   §  2354. 


No.  574.  B.      VARYING  THE  TERMS  OF  A  DOCUMENT.  639 

or  bystanders  may  be  received,  upon  a  motion  for  a  new  trial  or  to  rectify 
a  mistake  in  the  minutes;  but  an  affidavit  of  a  juror  never  can  be  read  as 
to  what  he  then  thought  or  intended.  .  .  .  No  argument  can  be  urged  for 
omitting  the  word  'only'  which  does  not  prove  that  it  can  have  no  effect 
though  inserted;  and  therefore  it  is  a  question  of  law  upon  the  face 
of  the  verdict.  .  .  .  The  question  is  whether  any  meaning  can  be  put 
upon  the  word  'only,'  as  it  stands  upon  the  record,  which  will  affect 
the  verdict.  ...  It  is  impossible  to  say  with  certainty  what  the  jury 
really  did  mean.  Probably  they  had  different  meanings.  If  they  could 
possibly  mean  that  which,  if  expressed,  would  acquit  the  defendant, 
he  ought  not  to  be  concluded  by  the  verdict.  ...  If  a  doubt  arises  from 
an  ambiguous  and  unusual  word  in  the  verdict,  the  Court  ought  to  lean 
in  favor  of  a  venire  de  novo,"^ 


CAPEN  V.  STOUGHTON    (i860). 
16  Gray  364. 

Petition  entered  at  April  term  1858  of  the  court  of  common  pleas 
in  Norfolk,  setting  forth  that  in  November  1856  a  town  way  was  laid 
out  over  the  land  of  the  petitioners  in  Stoughton,  and  damages 
^'*  assessed  therefor,  by  which  the  petitioners  were  aggrieved,  and 
the  county  commissioners,  upon  their  application  and  after  due  notice, 
issued  a  warrant  for  a  reassessment  of  the  damages  by  a  jury;  that 
a  jury  was  empanelled  and  the  case  tried  before  them;  that  blank  forms 
of  verdict  for  the  petitioners  and  for  the  respondents  were  handed  to 
them  by  the  sheriff;  that  the  jury  agreed  upon  and  filled  out  a  ver- 
dict for  the  petitioners,  but  through  mistake  omitted  to  sign  it,  and 
signed  a  verdict  for  the  respondents ;  that  both  verdicts  were  sealed  up 
in  one  envelope  and  returned  into  the  court  of  common  pleas ;  that  the 
petitioners  received  information  from  some  of  the  jurors  that  the 
verdict  returned  was  in  their  favor,  and  so  told  their  counsel,  and  he, 
relying  on  this  information,  without  inspecting  the  verdict,  moved  the 
court  at  December  term  1857  to  accept  it,  and  it  was  accepted  and 
ordered  to  be  certified  to  the  county  commissioners.  The  prayer  of 
the  petition  was  that  this  judgment  should  be  vacated,  the  case  brought 
forward  on  the  docket,  and  leave  given  the  petitioners  to  sue  out  a  writ 
of  review.  Sanger,  J.,  ruled  that,  assuming  all  the  facts  stated  in 
the  petition  to  be  true,  the  petitioners  were  not  legally  entitled  to  the 
relief  prayed  for,  and  the  court  had  no  discretionary  power  to  grant  it : 
and  dismissed  the  petition.  The  petitioners  alleged  exceptions,  which 
were  argued  in  January  1859,  and  sustained,  and  the  case  remitted.  .  .  . 

a — Compare  No.  631,  post. 


640  PAROL   EVIDENCE   RULE.  No.  574. 

A  hearing  was  had  in  the  court  of  common  pleas  at  April  term 
1859,  at  which  Aiken,  J.,  against  the  objection  of  the  respondents, 
allowed  three  of  the  persons  who  had  composed  the  sherifif's  jury  to 
testify  that,  after  agreeing  on  a  verdict  for  the  petitioners  and  falling 
up  a  blank  form  accordingly,  the  jury  by  mistake  signed  the  form 
of  verdict  for  the  respondents;  and  ordered  the  former  case  to  be 
brought  forward  on  the  docket,  and  the  acceptance  of  the  verdict  to 
be  vacated  as  prayed  for.  The  respondents  alleged  exceptions  to  the 
admission  of  the  testimony  of  the  jurors. 

BiGELOW,  C.  J. :  "We  think  this  case  differs  essentially  from  those 
cited  by  the  counsel  for  the  respondents,  in  which  it  has  been  held, 
that  the  testimony  of  jurors  is  inadmissible  in  support  of  a  motion  to 
set  aside  a  verdict  on  the  ground  of  mistake,  irregularity  or  miscon- 
duct of  the  jury,  or  of  some  one  or  more  of  the  panel.  It  has  been 
settled  upon  sound  considerations  of  public  policy  that  mistake  of  the 
testimony,  misapprehension  of  the  law,  error  in  computation,  irregular 
or  illegal  methods  of  arriving  at  damages,  unsound  reasons  or  improper 
motives,  misconduct  during  the  trial  or  in  the  jury  room,  cannot  be 
shown  by  the  evidence  of  the  jurors  themselves,  as  the  ground  of  dis- 
turbing a  verdict,  duly  rendered.  .  .  .  But  in  the  present  case  the  mis- 
take which  is  proved  by  the  testimony  of  the  jurors  is  of  a  different 
character.  It  is  not  one  connected  with  the  consultations  of  the  jury, 
or  the  mode  in  which  the  verdicts  were  arrived  at  or  made  up.  No 
fact  or  circumstance  is  offered  to  be  proved,  which  occurred  prior  to 
the  determination  of  the  case  by  the  jury  and  their  final  agreement 
on  the  verdict  which  was  to  be  rendered  by  them.  But  the  evidence 
of  the  jurors  is  offered  only  to  show  a  mistake,  in  the  nature  of  a 
clerical  error,  which  happened  after  the  deliberations  of  the  jury  had 
ceased,  and  they  had  actually  agreed  on  their  verdict.  The  error  con- 
sisted, not  in  making  up  their  verdict  on  wrong  principles  or  on  a  mis- 
take of  facts,  but  in  an  omission  to  state  correctly  in  writing  the 
verdict  to  which  they  had,  by  a  due  and  regular  course  of  proceeding, 
honestly  and  fairly  arrived.  .  .  .  No  considerations  of  public  policy 
require  that  the  uncontradicted  testimony  of  jurors  to  establish  an 
error  of  this  nature  should  be  excluded.  Its  admission  does  not  in  any 
degree  infringe  on  the  sanctity  with  which  the  law  surrounds  the  de- 
liberations of  juries,  or  expose  their  verdicts  to  be  set  aside  through 
improper  influences,  or  upon  grounds  which  might  prove  dangerous  to 
the  purity  and  steadiness  of  the  administration  of  public  justice.  On 
the  contrary,  it  is  a  case  of  manifest  mistake,  of  a  merely  formal  and 
clerical  character,  which  the  Court  ought  to  interfere  to  correct,  in 
order  to  prevent  the  rights  of  parties  from  being  sacrificed  by  a  blind 
adherence  to  a  rule  of  evidence,  in  itself  highly  salutary  and  reason- 
able, but  which  upon  principle  has  no  application  to  the  present  case."' 

3 — Compare  the  authorities  cited  in  W.,  §§  2355,  2356. 


No.  575.  B.      VARYING  THE  TERMS  OF  A  DOCUMENT.  641 

LOW'S  CASE    (1827). 
4  Me.  439. 

An  indictment  was  found  at  the  last  April  term  in  this  county, 
against  this  defendant,  for  the  alleged  forgery  of  a  deed.  At  the  last 
September  term,  being  brought  in  to  plead  to  the  indictment, 
"''^  he  filed  a  motion  in  writmg  under  oath,  in  these  words: — "And 
now  the  said  John  Low  comes  into  court,  and  alleges  that  he  ought 
not  to  be  holden  to  answer  to  this  indictment,  because  he  says  that 
the  said  indictment  was  not  found  by  any  twelve  of  the  grand  jury; 
but  simply  by  a  majority  of  the  number  who  constituted  the  grand 
jury  panel,  at  the  court  at  which  said  bill  purports  to  be  found.  And 
he  now  moves  the  court  for  liberty  to  prove  these  facts  by  the  testi- 
mony of  James  Gray,  foreman  of  the  grand  jury  who  returned  said 
bill  into  court;  and  by  Col.  Thomas  W.  Shannon,  Joseph  Frost,  Esq., 
John  S.  Foss  and  Miles  Ford,  who  were  grand  jurors  on  the  panel 
aforesaid,  and  who  are  now  here  present  in  court ;  and  that  said  bill 
was  so  returned  under  a  mistaken  idea  that  it  was  only  necessary 
that  a  majority  of  the  panel  should  agree  to  a  bill  of  indictment."  The 
affidavits  of  the  grand  jurors  named  in  the  motion  being  taken  de  bene 
esse,  they  all  testified  that  their  impression  was,  that  it  was  sufficient 
if  a  majority  of  the  grand  jury  concurred  in  the  finding  of  a  bill, 
though  the  number  composing  the  majority  was  less  than  twelve.  The 
foreman  and  two  others  stated  that  in  the  present  case  the  number  of 
grand  jurors  so  concurring  was  less  than  twelve.  One  of  the  others 
testified  that  such  was  his  impression,  but  that  he  did  not  feel  certain 
of  the  fact ;  and  the  other  said  that  he  did  not  know  whether  there  were 
or  were  not  twelve  who  concurred  in  finding  the  bill.  The  motion  was 
then  ordered  to  stand  over  for  argument  at  this  term.  .  .  . 

Weston,  J. :  "...  The  concurrence  of  twelve  grand  jurors  is 
necessary  to  find  a  bill.  The  party  accused  cannot  be  legally  held  to 
answer,  upon  the  finding  of  a  less  number.  And  this  privilege  is  se- 
cured to  the  citizen,  in  crimes  capital  or  infamous,  by  the  provisions 
of  the  constitution.  These  positions  are  not  denied ;  but  it  is  insisted 
that,  when  an  indictment  is  once  verified  by  the  attestation  of  the  fore- 
man of  the  grand  jury  that  it  is  a  true  bill,  and  as  such  been  presented 
to  the  Court,  and  ordered  to  be  put  on  file,  it  then  becomes  a  matter 
of  record ;  and  furnishes  conclusive  and  incontrovertible  evidence,  that 
it  was  found  by  the  requisite  number.  I  am  satisfied  that  an  indict- 
ment, thus  sanctioned,  is  to  be  regarded  as  a  record,  and  that  it  has 
all  the  legal  verity  which  belongs  to  that  species  of  evidence;  and  I 
admit  that  according  to  our  practice,  it  proves  the  fact  that  twelve  or 
more  agreed  to  the  bill.  I  think  the  certificate  of  the  foreman  must 
be  necessarily  understood  as  implying  this,  and  as  constituting  the 
proper  evidence  of  the  fact ;  it  not  here  appearing  in  the  caption  that 
it  was  found  by  twelve  men,  according  to  the  usage  in  England.     But 


642  PAROL   EVIDENCE   RULE.  No.  575. 

while  I  recognize  the  absolute  certainty,  which  a  regular  judicial  rec- 
ord carries  with  it,  and  the  policy  upon  which  it  is  founded,  I  am  also 
of  opinion  that  there  is,  and  always  has  been,  and  from  the  necessity 
of  the  case  must  be,  a  power  in  the  Court  to  vacate,  or  to  cause  to 
be  amended,  a  record  which  has  been  erroneously  or  falsely  made,  by 
inadvertency  or  otherwise,  by  any  of  its  officers.  I  entertain  no  doubt 
that  the  Court  may  exercise  this  power  at  any  time,  according  to  their 
discretion;  but  unquestionably  while  a  criminal  prosecution,  or  a  civil 
suit,  is  yet  in  progress,  and  has  not  finally  terminated.  .  .  .  The  return 
of  the  sheriff,  upon  mesne  or  final  process,  has  the  character  of  a 
record;  and  as  such  is  incontrovertible;  and  yet  it  is  no  uncommon 
practice  for  the  Court,  in  their  discretion,  to  permit  him  to  amend  it. 
And  upon  the  suggestion  of  the  clerk  that  an  error  has  crept  into  the 
record,  through  the  inadvertency  either  of  himself  or  his  substitutes, 
the  court,  being  satisfied  of  the  truth  of  the  suggestion,  do  not  hesitate 
to  order  its  amendment. 

"It  is  well  known  that  in  our  practice,  when  the  grand  jury  come 
into  court,  upon  being  inquired  of  whether  they  have  agreed  in  any 
bills,  and  the  foreman  answering  in  the  affirmative,  he  is  directed  to 
hand  them  in;  whereupon  they  pass  from  his  hands,  through  the  inter- 
vention of  an  officer  to  the  clerk.  They  are  not  read  over,  nor  is  the 
substance  of  them  stated,  or  the  persons  named  against  whom  they  are 
found.  It  is  taken  for  granted  that  the  foreman  returns  only  such  as 
the  requisite  number  have  concurred  in;  but  no  inquiry  is  made  of 
his  fellows,  nor  is  it  made  known  to  them  at  the  time  what  bills  are 
passed  over  to  the  Court.  Let  it  be  supposed  that  after  they  have 
been  received,  and  ordered  to  be  filed,  and  the  grand  jury  discharged, 
it  should  happen  to  be  suggested  to  them  that,  among  the  number,  is 
one  charging  a  certain  citizen  with  a  certain  crime.  If  therefore  every 
juror,  except  the  foreman,  should  present  himself  and  offer  his  affidavit 
that  he  never  agreed  to  such  a  bill,  is  there  no  power  in  the  Court  to 
receive  such  testimony,  and  if  assured  of  its  truth  to  give  relief?  Or 
if  the  foreman,  after  the  grand  jury  has  been  dismissed,  discovering 
his  mistake,  should  suggest  to  the  Court,  and  offer  to  support  his  state- 
ment by  oath,  and  by  the  corroborating  testimony  of  every  member 
of  the  grand  jury,  that  the  Attorney  General  had  drawn  two  bills 
against  a  party  accused,  one  for  murder  and  one  for  manslaughter,  and 
had  left  them  with  the  jury,  that  they  might  make  use  of  one  or  the 
other,  as  they  might  find  the  facts ;  that  a  competent  number  of  them 
had  agreed  in  the  bill  for  manslaughter;  but  that  he  had  since  dis- 
covered that  he  had  inadvertently  signed  and  presented  as  true  the  bill 
for  murder,  to  which  they  had  not  agreed;  is  the  judicial  power  so 
defective,  that  this  error  must  remain  without  correction?  If  so  the 
life  of  a  citizen  may  be  brought  into  jeopardy,  in  violation  of  both  his 
legal  and  constitutional  rights,  under  the  pretence  of  a  necessary  ad- 
herence to  the  letter  of  a  technical  rule. 


No.  576.  B.      VARYING  THE  TERMS  OF  A  DOCUMENT.  643 

"It  may  be  said  that  to  permit  an  inquiry  of  this  sort,  would  open 
the  door  to  great  abuses;  that  it  would  afford  opportunity  to  tamper 
with  the  jury;  and  that  it  would  lessen  the  respect  due  to  the  forms 
and  solemnities  of  judicial  proceedings.  These  are  considerations, 
which  address  themselves  strongly  to  the  attention  of  the  Court ;  and 
cannot  fail  to  have  a  deep  influence,  in  the  exercise  of  their  discre- 
tion. It  could  only  be  in  a  very  clear  case ;  where  it  could  be  made 
to  appear  manifestly  and  beyond  every  reasonable  doubt,  that  an  in- 
dictment, apparently  legal  and  formal,  had  not  in  fact  the  sanctions 
which  the  law  and  the  constitution  require,  that  the  Court  would  sus- 
tain a  motion  to  quash  or  dismiss  it,  upon  a  suggestion  of  this  kind."* 


5.     Corporate  Acts. 


UNITED  STATES  BANK  v.  DANDRIDGE    (1827). 
12  Wheat.  65. 

Story,  J. :  "This  is  a  writ  of  error  to  the  circuit  court  for  the  dis- 
trict of  Virginia.  The  original  action  was  debt  on  a  bond,  purporting 
to  be  signed  by  Dandridge,  as  principal,  and  Carter  B.  Page,  Wil- 
"' "  son  Allen,  James  Brown,  Jr.,  Thomas  Taylor,  Harry  Heth  and  An- 
drew Stevenson,  as  his  sureties,  and  was  brought  jointly  against  all  the 
parties.  The  condition  of  the  bond,  after  reciting  that  Dandridge  had 
been  appointed  cashier  of  the  office  of  discount  and  deposit  of  the 
Bank  of  the  United  States,  at  Richmond,  Virginia,  was,  that  if  he 
should  well  and  truly,  and  faithfully  discharge  the  duties  and  trust 
reposed  in  him  as  cashier  of  the  said  office,  then  the  obligation  to  be 
void,  otherwise  to  remain  in  full  force  and  virtue.  The  declaration  set 
forth  the  condition,  and  assigned  various  breaches.  Dandridge  made 
no  defence;  and  the  suit  was  abated,  as  to  Heth,  by  his  death.  The 
other  defendants  severed  in  their  pleas.  It  is  not  thought  necessary 
to  state  the  pleadings  at  large ;  it  is  sufficient  to  state,  that  Stevenson 
and  Allen  pleaded,  among  other  pleas  nan  est  factum  generally,  and 
also  special  pleas  of  non  est  factum,  on  which  issues  were  joined;  and 
that  all  the  defendants,  in  various  forms,  pleaded,  that  the  instru- 
ment was  not  the  deed  of  Stevenson;  and  further  pleaded,  that  the 
bond  had  never  been  approved,  according  to  the  provisions  of  the 
30th  article  of  the  rules  and  regulations  of  the  bank.  Issues  were 
also  taken  on  these  pleas;  and  the  cause  came  on  for  trial  upon  all 
the  issues  of  fact.  At  the  trial,  evidence  was  offered  for  the  purpose 
of  establishing  the  due  execution  of  the  bond  by  the  defendants,  and 
particularly  by  Stevenson  and  Allen,  and  its  approval  by  the  plain- 
tiffs. The  evidence  was  objected  to.  on  behalf  of  the  defendants,  as' 
not  sufficient  to  be  left  to  the  jury,  to  infer  a  delivery  of  the  bond,  and 

4 — Compare  the   authorities    cited   in   W.,    §  2364. 


G44  PAROL    EVIDENCE   RULE.  No.  576. 

the  acceptance  and  approval  thereof  by  the  directors  of  the  bank, 
according  to  the  provisions  of  their  charter;  and  the  objection  v^as 
sustained,  the  Court  being  of  opinion,  that  although  the  scroll  affixed 
by  Allen  to  his  name,  is,  in  Virginia,  equivalent  to  a  seal  of  wax, 
and  although  proof  of  the  handw^riting  of  Stevenson,  and  the  bond 
being  in  possession  of  the  plaintiffs,  and  put  in  suit  by  them,  and 
the  introduction  of  Dandridge  into  the  office  of  cashier,  and  his 
continuing  to  act  in  that  office,  would,  in  general,  be  prima  facie 
evidence,  to  be  submitted  to  the  jury,  as  proof  that  the  bond  was 
fully  executed  and  accepted;  yet  it  was  not  evidence  of  that  fact, 
or  of  the  obligation  of  the  bond,  in  this  case ;  because,  under  the 
Act  of  Congress,  incorporating  the  Bank  of  the  United  States,  the 
bond  ought  to  be  satisfactory  to  the  board  of  directors,  before  the 
cashier  can  legally  enter  on  the  duties  of  his  office,  and  consequently, 
before  his  sureties  can  be  responsible  for  his  non-performance  of 
those  duties ;  and  that  the  evidence  in  this  case  did  not  prove  such 
acceptance  and  approbation  of  the  bond,  as  is  required  by  law  for 
its  completion.  .  .  .  The  court  excluded  the  whole,  and  every  part  of 
the  said  evidence  from  the  jury,  being  of  opinion,  that  the  board  of 
directors  keep  a  record  of  their  proceedings,  which  record,  or  a  copy 
of  it,  showing  the  assent  of  the  directors  to  this  bond,  was  necessary 
to  show  that  such  assent  was  given ;  and  if  such  assent  had  not  been 
entered  on  the  record  of  the  proceedings  of  the  said  directors,  the 
bond  was  ineffectual,  and  no  claim  in  favor  of  the  plaintiffs  could 
be  founded  thereon,  against  the  defendants  in  these  issues.  ...  It  is 
admitted,  in  the  opinion  of  the  Circuit  Court,  that  the  evidence  offered 
would  in  common  cases,  between  private  persons,  have  been  prima 
facie  evidence,  to  be  submitted  to  the  jury,  as  proof  that  the  bond  was 
fully  executed  and  accepted.  But  it  is  supposed,  that  a  different  rule 
prevails  in  cases  of  corporations ;  that  their  acts  must  be  established 
by  positive  record  of  proofs;  and  that  no  presumptions  can  be  made, 
in  their  favor,  of  corporate  assent  or  adoption,  from  other  circum- 
stances, though  in  respect  to  individuals,  the  same  circumstances  would 
be  decisive.  The  doctrine,  then,  is  maintained  from  the  nature  of 
corporations,  as  distinguished  from  natural  persons;  and  from  the 
supposed  incapacity  of  the  former  to  do  any  act,  not  evidenced  by 
writing,  and  if  done,  to  prove  it,  except  by  writing.  .  .  . 

"In  ancient  times,  it  was  held,  that  corporations  aggregate  could 
do  nothing  but  by  deed  under  their  common  seal.  But  this  principle 
must  always  have  been  understood  with  many  qualifications;  and  seems 
inapplicable  to  acts  and  votes  passed  by  such  corporations  at  corpor- 
ate meetings.  It  was  probably,  in  its  origin,  applied  to  aggregate 
corporations  at  the  common  law,  and  limited  to  such  solemn  proceed- 
ings as  were  usually  evidenced  under  seal,  and  had  to  be  done  by 
those  persons  who  had  the  custody  of  the  common  seal,  and  had 
authority  to  bind  the  corporation  thereby,  as  their  permanent  official 
agents.     Be  this  as   it  may,  the  rule  has  been  broken  in   upon   in  a 


No,  576.  B.      VARYING  THE  TERMS  OF  A  DOCUMENT.  645 

vast  variety  of  cases,  in  modern  times,  and  cannot  now,  as  a  general 
proposition,  be  supported.  Mr.  Justice  Bayley,  in  Harper  v.  Charles- 
worth,  4  B.  &  C.  575,  said,  'A  corporation  can  only  grant  by  deed ; 
yet  there  are  many  things  which  a  corporation  has  power  to  do,  other- 
wise than  by  deed.  It  may  appoint  a  bailiff,  and  do  other  acts  of  a 
like  nature.'  And  it  is  now  firmly  established,  both  in  England  and 
America,  that  a  corporation  may  be  bound  by  a  promise,  express  or 
implied,  resulting  from  the  acts  of  its  authorized  agent,  although 
such  authority  be  only  by  virtue  of  a  corporate  vote,  unaccompanied 
with  the  corporate  seal.  But  whatever  may  be  the  implied  powers 
of  aggregate  corporations,  by  the  common  law,  and  the  modes  by 
which  those  powers  are  to  be  carried  into  operation,  corporations 
created  by  statute  must  depend,  both  for  their  powers  and  the  mode 
of  exercising  them,  upon  the  true  construction  of  the  statute  itself. 
.  .  .  We  do  not  admit,  as  a  general  proposition,  that  the  acts  of  a 
corporation,  although  in  all  other  respects  rightly  transacted,  are 
invalid,  merely  from  the  omission  to  have  them  reduced  to  writing, 
unless  the  statute  creating  it  makes  such  writing  indispensable  as 
evidence,  or  to  give  them  an  obligatory  force.  If  the  statute  imposes 
such  a  restriction,  it  must  be  obeyed;  if  it  does  not,  then  it  remains 
for  those  who  assert  the  doctrine  to  establish  it  by  the  principles 
of  the  common  law,  and  by  decisive  authorities.  None  such  have,  in 
our  judgment,  been  produced.  ...  If  a  person  acts  notoriously  as 
cashier  of  a  bank,  and  is  recognised  by  the  directors,  or  by  the  cor- 
poration, as  an  existing  officer,  a  regular  appointment  will  be  pre- 
sumed ;  and  his  acts,  as  cashier,  will  bind  the  corporation,  although 
no  written  proof  is  or  can  be  adduced  of  his  appointment.  In  short, 
we  think,  that  the  acts  of  artificial  persons  afford  the  same  pre- 
sumptions as  the  acts  of  natural  persons.  .  .  . 

"But  the  present  question  does  not  depend  upon  the  point,  whether 
the  acts  of  a  corporation  may  be  proved  otherwise  than  by  some 
written  document.  ...  In  the  present  case,  the  acts  of  the  corporation 
itself,  done  at  a  corporate  meeting,  are  not  in  controversy.  .  .  .  The 
corporation  is  altogether  a  distinct  body  from  the  directors,  possessing 
all  the  general  powers  and  attributes  of  an  aggregate  corporation,  and 
entitled  to  direct  and  superintend  the  management  of  its  own  property, 
and  the  government  of  the  institution,  and  to  enact  by-laws  for  this 
purpose.  .  .  .  Assuming,  then,  that  the  directors  of  the  parent  bank 
were,  as  a  board,  to  approve  of  the  bond,  so  far  as  it  respects  the 
sureties,  in  what  manner  is  that  approval  to  be  evidenced?  Without 
question,  the  directors  keep  a  record  of  their  proceedings  as  a  board; 
and  it  appears  by  the  rules  and  regulations  of  the  parent  bank,  read 
at  the  bar,  that  the  cashier  is  bound  'to  attend  all  meetings  of  the 
board,  and  to  keep  a  fair  and  regular  record  of  its  proceedings.'  If 
he  does  not  keep  such  a  record,  are  all  such  proceedings  void,  or  is 
the  bank  at  liberty  to  establish  them  by  secondary  evidence?  In  the 
present  case   (we  repeat  it),  the  whole  argument  has  proceeded  upon 


64t)  PAROL   EVIDENCE   RULE.  No.  576. 

the  ground,  as  conceded,  that  no  such  record  exists  of  the  approval 
of  the  present  bond.  The  charter  of  the  bank  does  not,  in  terms,  re- 
quire that  such  an  approval  shall  be  by  w^riting,  or  entered  of  record. 
It  does  not,  in  terms,  require  that  the  proceedings  of  the  directors 
shall  generally  be  recorded,  much  less,  that  all  of  them  shall  be 
recorded.  It  seems  to  have  left  these  matters  to  the  general  discre- 
tion of  the  corporation,  and  of  the  directors;  and  though  it  obviously 
contemplates,  that  there  will  be  books  kept  by  the  corporation,  which 
will  disclose  the  general  state  of  affairs,  it  is  not  a  just  inference,  that 
it  meant  that  every  official  act  of  the  directors  should  be  recorded, 
of  what  ever  nature  it  might  be.  .  .  .  Upon  what  ground  it  can  be 
maintained,  that  the  approval  of  the  bond  by  the  directors  must  be 
in  writing?  It  is  not  required  by  the  terms  of  the  charter,  or  the 
by-laws.  In  each  of  them,  the  language  points  to  the  fact  of  approval, 
and  not  to  the  evidence  by  which  it  is  to  be  established,  if  controverted. 
It  is  nowhere  said,  the  approval  shall  be  in  writing,  or  of  record. 
The  argument  at  the  bar,  upon  the  necessity  of  its  being  in  writing, 
must,  therefore,  depend  for  its  support,  upon  the  ground,  that  it  is  a 
just  inference  of  law  from  the  nature  and  objects  of  the  statute,  from 
the  analogy  of  the  board  of  directors  to  a  corporate  body,  from 
principles  of  public  convenience  and  necessity,  or  from  the  language 
of  authorities,  which  ought  not  to  be  departed  from.  Upon  the  best 
consideration  we  can  give  the  subject,  we  do  not  think  that  the 
argument  can  be  maintained,  under  any  of  these  aspects." 

Marshall,  Ch.  J.  (dissenting.)  :  "I  should  now,  as  is  my  custom, 
when  I  have  the  misfortune  to  differ  from  this  court,  acquiesce  silently 
in  its  opinion,  did  I  not  believe  that  the  judgment  of  the  circuit  court 
of  Virginia  gave  general  surprise  to  the  profession,  and  was  generally 
condemned.  .  .  .  The  plaintiff  is  a  corporation  aggregate;  a  being 
created  by  law;  itself  impersonal,  though  composed  of  many  individ- 
uals. These  individuals  change  at  will:  and  even  while  members 
of  the  corporation,  can,  in  virtue  of  such  membership,  perform  no 
corporate  act,  but  are  responsible  in  their  natural  capacities,  both 
while  members  of  the  corporation,  and  after  they  cease  to  be  so, 
for  everything  they  do,  whether  in  the  name  of  the  corporation  or 
otherwise.  The  corporation  being  one  entire  impersonal  entity,  dis- 
tinct from  the  individuals  who  compose  it,  must  be  endowed  with  a 
mode  of  action  peculiar  to  itself,  which  will  always  distinguish  its 
transactions  from  those  of  its  members.  This  faculty  must  be 
exercised  according  to  its  own  nature.  Can  such  a  being  speak,  or 
act,  otherwise  than  in  writing?  Being  destitute  of  the  natural  organs 
of  man,  being  distinct  from  all  its  members,  can  it  communicate  its 
resolutions,  or  declare  its  will,  without  the  aid  of  some  adequate  sub- 
stitute for  those  organs?  If  the  answer  to  this  question  must  be  in  the 
negative,  what  is  that  substitute?  T  can  imagine  no  other  than  writing. 
The  will  to  be  announced  is  the  aggregate  will ;  the  voice  which  utters 
it,   must  be  the  aggregate   voice.     Human  organs  belong  only  to  in- 


i 


No.  576.  B.      VARYING  THE  TERMS  OF  A  DOCUMENT.  647 

dividuals;  the  words  they  utter  are  the  words  of  individuals.  These 
individuals  must  speak  collectively,  to  speak  corporately,  and  must  use 
a  collective  voice;  they  have  no  such  voice,  and  must  communicate 
this  collective  will  in  some  other  mode.  That  other  mode,  as  it  seems 
to  me,  must  be  by  writing.  A  corporation  will  generally  act  by  its 
agents ;  but  those  agents  have  no  self-existing  power.  It  must  be 
created  by  law,  or  communicated  by  the  body  itself.  This  can  be  done 
only  by  writing.  ...  It  is  stated  in  the  old  books  (Bro.  Corp.  49). 
that  a  corporation  may  have  a  ploughman,  butler,  cook,  &c.,  without 
retaining  them  by  deed;  and  in  the  same  book  (p.  50),  Wood  says, 
'small  things  need  not  be  in  writing,  as  to  light  a  candle,  make  a  fire, 
and  turn  cattle  ofif  the  land.'  Fairfax  said,  'A  corporation  cannot 
have  a  servant  but  by  deed;  small  things  are  admissible,  on  account 
of  custom,  and  the  trouble  of  a  deed  in  such  cases,  not  by  strict  law.' 
Some  subsequent  cases  show  that  officers  may  be  appointed  without 
deed,  but  not  that  they  may  be  appointed  without  writing.  Every  in- 
strument under  seal  was  designated  as  a  deed,  and  all  writings  not 
under  seal  were  considered  as  acts  by  parol.  Consequently,  when  the 
old  books  say  a  thing  may  be  done  without  deed,  or  by  parol,  nothing 
more  is  intended  than  that  it  may  be  done  without  a  sealed  instrument. 
It  may  still  require  to  be  in  writing.  .  .  .  According  to  the  decisions 
of  the  Courts  of  England,  then,  and  of  this  Court,  a  corporation, 
unless  it  be  in  matters  to  which  the  maxim  de  minimis  non  curat  lex 
applies,  can  act  or  speak,  and,  of  course,  contract,  only  by  writing.  .  .  . 
"It  may  be  said,  that  although  certain  things  ought  to  appear  in 
writing,  it  is  not  necessary  that  all  the  transactions  of  a  bank  should 
so  appear;  and  the  assent  of  the  directors  to  the  bonds  given  by  their 
cashiers,  need  not  appear.  Such  grave  acts  or  omissions  as  may 
justify  the  suing  out  a  scire  facias,  to  vacate  the  charter,  ought  to 
be  evidenced  by  their  records;  but  such  unimportant  acts  as  taking 
bonds  from  their  officers,  need  not  appear;  these  may  be  inferred.  I 
do  not  concur  in  this  proposition.  ,  .  .  The  counsel  for  the  plaintiffs 
has  sought  to  escape  the  almost  insuperable  difficulties  which  must 
attend  any  attempt  to  maintain  the  proposition  that  a  corporation  ag- 
gregate can  act  without  writing,  by  insisting  that  the  directors  are  not 
the  corporation,  but  are  to  be  considered  merely  as  individuals  who 
are  its  agents.  If  this  proposition  can  be  successfully  maintained, 
it  becomes  a  talisman,  by  whose  magic  power  the  whole  fabric  which 
the  law  has  erected  respecting  corporations,  is  at  once  dissolved.  In 
examining  it,  we  encountered  a  difficulty  in  the  commencement.  Agents 
are  constituted  for  special  purposes,  and  the  extent  of  their  power  is 
prescribed,  in  writing,  by  the  corporate  body  itself.  The  directors  are 
elected  by  the  stockholders,  and  manage  all  their  affairs,  in  virtue  of 
the  power  conferred  by  the  election.  The  stockholders  impart  no  au- 
thority to  them,  except  by  electing  them  as  directors.  But  we  are 
told,  and  are  told  truly,  that  the  authority  is  given  in  the  charter.  The 
charter  authorizes  the  directors  to  manage  all  the  business  of  the  cor- 


648  PAROL    EVIDENCE    RULE.  No,  5T«>. 

poration.  But  do  they  act  as  individuals,  or  in  a  corporate  character? 
If  they  act  as  a  corporate  body,  then  the  whole  law  applies  to  them  as 
to  other  corporate  bodies.  If  they  act  as  individuals,  then  we  have 
a  corporation  which  never  acts  in  its  corporate  character,  except  in 
the  instances  of  electing  its  directors,  or  instructing  them.  .  .  .  The 
president  and  directors  form,  by  the  charter,  a  select  body,  in  which 
the  general  powers  of  the  corporation  are  placed.  This  body  is,  I 
think,  the  acting  corporation.  .  .  .  The  board  must  keep  a  record  of 
its  proceedings.  Were  the  by-laws  silent  on  the  subject,  this  would 
be,  as  I  think,  rendered  indispensable,  by  the  fact,  that  it  is  the  act 
of  a  corporation  aggregate.  If  there  must  be  a  record  of  their  pro- 
ceedings, and  even  were  this  necessity  not  absolute,  if  the  by-laws 
show  that  there  is  one,  it  follows,  that  this  record,  not  the  oral  tes- 
timony of  the  members,  or  of  bystanders,  must  prove  their  acts.  .  .  . 
This  record,  or  an  authentic  copy  of  it,  must,  according  to  the  rules 
of  evidence,  be  produced,  that  it  may  prove  itself.  May  its  existence 
be  presumed  in  this  case?  The  corporation,  which  claims  this  pre- 
sumption, keeps  the  record,  and  is  now  in  possession  of  it,  if  it  exists. 
No  rule  of  evidence,  is  more  familiar  to  the  profession,  than  that  a 
paper  cannot  be  presumed,  under  such  circumstances. 

"I  have  stated  the  view  which  was  taken  by  the  circuit  court  of 
this  case.  I  have  only  to  add,  that  the  law  is  now  settled  otherwise, 
perhaps,  to  the  advancement  of  public  convenience.  I  acquiesce,  as 
I  ought,  in  the  decision  which  has  been  made,  though  I  could  not 
concur  in  it."^ 


C.    FORMALITIES   OF  LEGAL   ACTS. 

Statutes  requiring  Writing  as  an  Essential  of  a  Legal  Act. 
1535,  St.  27  H.  VIII,  c.  16:  "No  manors,  lands,  tenements,  or  other 
hereditaments,  shall  pass,  alter,  or  change  from  one  to  another. 
"*'  ...  by  reason  only  of  any  bargain  and  sale  thereof,  except  the 
same  bargain  and  sale  be  made  by  writing  indented,  sealed,  and  in- 
rolled  in  one  of  the  king's  courts  of  record." 

5 — Compare   the   following:  have    been    adopted    or    approved    by    the 

State  V.  Main,   69  Conn.    123,   37  Atl.  80  State  Board  of  Agriculture,   and  the   State 

(1897);   Information   for  a  violation  of  the  having    failed    to    prove    any    such    regula- 

statute       relating      to      "peach       yellows,"  tions,   the    defendant   should   be   acquitted.' 

brought    to    the    Superior    Court    in    New  They    were    properly    refused,    because    the 

London     County     and     tried     to     the     jury  State     had     offered     evidence     tending     to 

before     Shunnvay,     J.;     verdict     and    judg-  show    that    such    regulations    had    been    pre- 

ment    of   guilty.    .    .    .    Baldwin,   J.:      "The  viously    adopted.       This     evidence     was     a 

defendant     requested     instructions     to     the  copy   from   the   records   of   the   board,    duly 

effect     that     before    the     commissioner     of  certified    by    its    secretary,    under    its    seal, 

peach  yellows   or  his   deputy   'could  legally  purporting    to     set     forth     the     doings     of 

order    trees    destroyed,    regulations    in    re-  the     board     at     a     meeting     held     several 

lation  to  so  ordering  trees   destroyed  must  months  before  the  date  of  the  order  served 


No.  577.  C.      FORMALITIES  OF  LEGAL  ACTS.  649 

1540,  St.  32  H.  VIII,  c.  I,  §  I :  Gives  liberty  to  devise  all  lands 
"as  well  by  his  last  will  and  testament  in  writing,  or  otherwise  by  any 
act  or  acts  lawfully  executed  in  his  life." 

1678,  St.  29  Car.  II,  c.  3,  §  I :  "All  leases,  estates,  interests  of  free- 
hold, or  terms  of  years,  or  any  uncertain  interests  of,  in,  to,  or  out 
of  any  messuages,  manors,  lands,  tenements,  or  hereditaments,  made 
or  created  by  livery  and  seisin  only,  or  by  parol,  and  not  put  in  writ- 
ing and  signed  by  the  parties  so  making  or  creating  the  same,  or  their 
agents  thereunto  lawfully  authorized  by  writing,  shall  have  the  force 
and  effect  of  leases  or  estates  at  will  only,  and  shall  not  either  in  law 
or  equity  be  deemed  or  taken  to  have  any  other  or  greater  force  or 
effect.  .  .  ." 

lb.  §  3 :  "No  leases,  estates,  or  interests  ...  [in  land]  shall  .  .  . 
be  assigned,  granted,  or  surrendered,  unless  it  be  by  deed  or  note  in 
writing,  signed  by  the  party  so  assigning." 

lb.  §  4 :  "No  action  shall  be  brought  whereby  to  charge  any  execu- 
tor or  administrator  upon  any  special  promise  to  answer  damages  out 
of  his  own  estate,  or  whereby  to  charge  the  defendant  upon  any  special 
promise  to  answer  for  the  debt,  default,  or  miscarriages  of  another 
person,  or  to  charge  any  person  upon  any  agreement  made  upon  con- 
sideration of  marriage,  or  upon  any  contract  of  sale  of  lands,  tene- 
ments, or  hereditaments,  or  any  interest  in  or  concerning  them,  or  upon 
any  agreement  that  is  not  to  be  performed  within  the  space  of  one 
year  from  the  making  thereof,  unless  the  agreement  upon  which  such 
action  shall  be  brought,  or  some  memorandum  or  note  thereof,  shall 
be  in  writing,  and  signed  by  the  party  to  be  charged  therewith,  or  some 
other  person  thereunto  by  him  lawfully  authorized." 

lb.  §  5 :  "All  devises  and  bequests  of  any  lands  or  tenements  .  .  . 
shall  be  in  writing,  and  signed  by  the  party  so  devising  the  same,  or 
by  some  other  person  in  his  presence  and  by  his  express  directions,  and 
shall  be  attested  and  subscribed  in  the  presence  of  the  said  devisor  by 
three  or  four  credible  witnesses,  or  else  they  shall  be  utterly  void  and 
of  none  effect." 

lb.  §7:  "All  declarations  of  creations  of  trusts  or  confidences  of 
any  lands,  tenements,  or  hereditaments,  shall  be  manifested  and  proved 
by  some  writing  signed  by  the  party  .  .  .  ,  or  else  they  shall  be  utterly 
void  and  of  none  effect." 

lb.  §9:  "All  grants  and  assignments  of  any  trust  or  confidence 
shall  likewise  be  in  writing  signed  by  the  party  granting  or  assigning 
.  .  .  or  else  shall  likewise  be  utterly  void  and  of  none  effect." 

upon    the   defendant.      He   sought   to    meet  was    properly    rejected    by    the    court.      It 

this     document     by     oral     testimony     from  was    offered    to    impeach    the    record    of    a 

the    secretary    that    the    statement    in    the  public    board,    and    such    a    record    cannot 

minutes   of  the   meeting  that  certain   regu-  thus    be   collaterally    attacked." 

lations    were   adopted,    had   been    interlined  Compare    the    authorities    cited    in     \V., 

pending  this  prosecution,  and  was  no  part  g  2451. 

or    the    original     record.       This    testimony 


650  PAROL  EVIDENCE  RULE.  No.  577. 

lb.  §17:  "No  contract  for  the  sale  of  any  goods  .  .  ,  shall  he 
allowed  to  he  good,  except  the  buyer  shall  accept  part  of  the  goods  so 
sold,  and  actually  receive  the  same,  or  give  something  in  earnest  to 
bind  the  bargain,  or  in  part  of  payment,  or  that  some  note  or  memo- 
randtim  in  writing  of  the  said  bargain  he  made  and  signed  by  the  par- 
ties to  be  charged  by  such  contract,  or  their  agents  thereunto  lawfully 
authorized." 

lb.  §  19:  "No  nuncupative  will  shall  be  good  .  .  .  that  is  not  proved 
by  the  oaths  of  three  witnesses  (at  the  least)  that  were  present  at 
the  making  thereof,  nor  unless  it  be  proved  that  the  testator  at  the 
time  of  pronouncing  the  same  did  bid  the  persons  present,  or  some  of 
them,  bear  witness  that  such  was  his  will,  or  to  that  effect." 

lb.  §20:  "After  six  months  passed  from  the  speaking  of  the  pre- 
tended testamentary  words,  no  testimony  shall  be  received  to  prove 
any  will  nuncupative,  except  the  said  testimony,  or  the  substance  there- 
of, were  committed  to  writing  within  six  days  after  the  making  of 
the  said  will." 


LEROUX  V.   BROWN    (1852). 
12  C.  B.  80J,  823. 

Assumpsit.  ...  It  appeared  that  an  oral  agreement  had  been  en- 
tered into  at  Calais,  between  the  plaintiff  and  the  defendant,  under 
which  the  latter,  who  resided  in  England,  contracted  to  employ 
the  former,  who  was  a  British  subject  resident  at  Calais,  at  a 
salary  of  100/.  per  annum,  to  collect  poultry  and  eggs  in  that  neigh- 
bourhood, for  transmission  to  the  defendant  here, — the  employment  to 
commence  at  a  future  day,  and  to  continue  for  one  year  certain.  Evi- 
dence was  given  on  the  part  of  the  plaintiff  to  show,  that,  by  the  law 
of  France,  such  an  agreement  is  capable  of  being  enforced,  although 
not  in  writing.  For  the  defendant,  it  was  insisted,  that,  notwithstand- 
ing the  contract  was  made  in  France,  when  it  was  sought  to  enforce 
it  in  this  country,  it  must  be  dealt  with  according  to  our  law;  and, 
being  a  contract  not  to  be  performed  within  a  year,  the  statue  of  frauds, 
29  Car.  2,  c.  3,  s.  4,  required  it  to  be  in  writing.  Under  the  direction 
of  the  learned  judge,  a  verdict  was  entered  for  the  plaintiff  on  the  first 
issue, — leave  being  reserved  to  the  defendant  to  move  to  enter  a  non- 
suit or  a  verdict  for  him  on  that  issue,  if  the  court  should  be  of  the 
opinion  that  the  contract  could  not  be  enforced  here. 

Jervis,  C.  J. :  "I  am  of  the  opinion  that  the  rule  to  enter  a  non- 
suit must  be  made  absolute.  There  is  no  dispute  as  to  the  principles 
which  ought  to  govern  our  decision.  My  Brother  Allen  admits,  that, 
if  the  4th  section  of  the  Statute  of  Frauds  applies,  not  to  the  validity 
of  the  contract,  but  only  to  the  procedure,  the  plaintiff  cannot  main- 
tain this  action,  because  there  is  no  agreement,  nor  any  memorandum 
or  note  thereof,  in  writing.     On  the  other  hand,  it  is  not  denied  by 


No.  579.  C.      FORMALITIES  OF  LEGAL  ACTS.  651 

Mr.  Honyman, — who  has  argued  this  case  in  a  manner  for  which  the 
Court  is  much  indebted  to  him, — that,  if  the  4th  section  applies  to  the 
contract  itself,  or,  as  Boullenois  expresses  it,  to  the  solemnities  of  the 
contract,  inasmuch  as  our  law  cannot  regulate  foreign  contracts,  a  con- 
tract like  this  may  be  enforced  here.  I  am  of  opinion  that  the  4th 
section  applies  not  to  the  solemnities  of  the  contract,  but  to  the  prc^ 
cedure ;  and  therefore  that  the  contract  in  question  cannot  be  sued  upon 
here.  The  contract  may  be  capable  of  being  enforced  in  the  country 
where  it  was  made :  but  not  in  England.  Looking  at  the  words  of  the 
4th  section  of  the  Statute  of  Frauds,  and  contrasting  them  with  those 
of  the  1st,  3d,  and  17th  sections,  this  conclusion  seems  to  me  to  be 
inevitable.  The  words  of  s.  4  are,  'no  action  shall  be  brought  upon 
any  agreement  which  is  not  to  be  performed  within  the  space  of  one 
year  from  the  making  thereof,  unless  the  agreement  upon  which  such 
action  shall  be  brought,  or  some  memorandum  or  note  thereof,  shall  be 
in  writing,  and  signed  by  the  party  to  be  charged  therewith,  or  some 
other  person  thereto  by  him  lawfully  authorized.'  The  statute,  in  this 
part  of  it,  does  not  say,  that,  unless  those  requisites  are  complied  with, 
the  contract  shall  he  void,  but  merely  that  no  action  shall  be  brought 
upon  it  and,  as  was  put  with  great  force  by  Mr.  Honyman,  the  alter- 
native, 'unless  the  agreement,  or  some  memorandum  or  note  thereof, 
shall  be  in  writing,' — words  which  are  satisfied  if  there  be  any  written 
evidence  of  a  previous  agreement, — shows  that  the  statute  contemplated 
that  the  agreement  may  be  good,  though  not  capable  of  being  enforced 
if  not  evidenced  by  writing.  This  therefore  may  be  a  very  good  agree- 
ment, though,  for  want  of  a  compliance  with  the  requisites  of  the 
statute,  not  enforceable  in  an  English  court  of  justice." 


Other  Formalities  than  Writing.^  "It  remains  here  only  to 
note,  for  the  sake  of  completeness,  the  remaining  formalities  receiv- 
ing the  sanction  of  modern  law.  These  formalities,  so  far  as 
required,  take  their  place,  with  the  writing  of  some  of  the  sec- 
tions of  the  statute  of  frauds,  as  an  inherent  element  of  form  in  the 
validity  of  the  transaction.  Like  all  other  requirements  of  form,  they 
are  arbitrary,  in  the  sense  that  the  act  may  be  sufficient  in  its  terms 
(for  example,  to  constitute  a  contract  or  a  release),  and  may  be  fully 
proved  by  the  evidence,  and  yet  remains  legally  ineffective.  Never- 
theless, they  are  not  arbitrary,  to  the  extent  that  they  rest  on  a  con- 
scious policy  of  avoiding  certain  general  dangers  or  abuses,  and  that 
they  enforce  a  rigid  rule  merely  for  the  sake  of  this  policy. 

"(i)  A  signature  is  required  by  the  statute  of  frauds,  for  all  of 
the  transactions  in  which  writing  is  required ;  and  obviously  the 
signature    is    a    formal    requirement    over    and    above   that   of    writing 

1 — Quoted   from   \V.,   §  2456. 


652  PAROL  EVIDENCE  RULE.  2nO.  579. 

alone.     A   signature,   however,   was  not   required  at  common  law   for 
a  deed. 

"(2)  A  seal  was  essential  at  common  law  for  the  chief  sorts  of 
documents.  The  origin  of  significance  of  the  seal,  in  its  relation  to 
the  use  of  writings,  has  already  been  noticed.  What  tue  form  of  a 
seal  should  be  was  long  a  subject  of  elaborate  discussion. 

"(3)  The  attestation  of  a  document  was  originally  not  a  formality 
to  the  validity  of  the  document,  but  merely  a  precaution  desirable  for 
securing  testimony  to  the  transaction ;  the  noting  of  the  names  of  the 
witnesses  on  the  document  was  thus  only  a  memorandum  for  future 
usefulness.  But  the  Statute  of  Frauds  introduced,  for  wills,  the  act 
of  attestation  as  a  formality.  This  formality  includes  two  things,  first 
the  presence  of  the  witnesses  at  the  act  of  signature  by  the  testator, 
and,  secondly,  the  signature  of  the  document  by  the  witnesses.  The 
two  together  thus  constitute  an  intrinsic  element  in  the  validity  of  the 
document.-  It  may  be  noted  that  whatever  questions  are  thus  raised — 
for  example,  whether  the  document  must  bear  a  written  recital  of  the 
witnesses'  presence,  or  whether,  if  their  signatures  are  borne,  the  fact 
of  presence  may  be  otherwise  established — do  not  involve  the  prin- 
ciple of  Integration,  but  only  the  principle  of  Formality. 

"(4)  The  registration  of  a  document  may  be  made  an  essential 
formality  of  its  validity,  apart  from  and  additionally  to  its  service 
as  a  constructive  notice  of  the  document's  validity.  But  this  quality 
is  seldom  attributed  to  it  unless  by  express  statutory  declaration. 
Under  the  modern  (or  Torrens)  system  of  registration  of  title,  no 
doubt  this  is  the  actual  result.  It  may  be  noted  that  by  this  modern 
system  the  document  of  title  would  seem  also  to  furnish  one  of  the 
rare  instances  of  a  compulsory  integration. 

"(5)  A  stamp  has  by  some  legislation  been  made  formally  neces- 
sary to  the  validity  of  a  document,  the  policy  of  such  laws  being  to 
compel  indirectly  the  payment  of  a  tax." 


D.     INTERPRETATION  OF  LEGAL  ACTS. 

General  Nature  of  Interpretation;  Standard  and  Sources  of 
Interpretation.^  "The  process  of  Interpretation  is  a  part  of  the 
procedure  of  realizing  a  person's  act  in  the  external  world.  It 
^^"  is,  in  a  sense,  the  completion  of  the  act;  for  without  it  the 
utterance,  whether  written  or  oral,  must  remain  vain  words.  If  a 
person  were  to  be  contented  with  proclaiming  his  contracts  at  the 
top  of  a  mountain,  or  nailing  his  deeds  to  the   front  gate,  he  would 

2 — Compare   Nos.    179,     264,    ante,   for  a        testation    and    the    requirement    of    the    at« 
distinction    between    the    formality    of    at-        testing    witness'    testimony. 

3 — Quoted    from    W.,    §§  2458,    2459. 


Na.  580.        D.   INTERPRETATION  OF  LEGAL  ACTS.  653 

not  need  to  be  concerned  with  the  process  of  interpretation.  But 
deeds  and  contracts  and  wills,  if  they  are  not  to  remain  empty  mani- 
festoes, must  be  enforced.  They  must  be  applied  to  external  objects. 
Somewhere  possession  must  be  yielded  or  goods  delivered  or  money 
transferred;  and  in  order  that  the  law  may  enforce  these  changes  in 
external  objects,  the  relation  between  the  terms  of  the  legal  act  and 
certain  specific  external  objects  must  be  determined,  as  an  indis- 
pensable part  of  the  process.  In  short,  the  interpretation  of  the  terms 
of  a  legal  act  is  an  essential  part  of  the  act  considered  as  capable  of 
legal  realization  and  enforcement.*  The  only  difference  is  that  the 
actor  alone  -.eates  the  terms  of  his  act,  while  the  interpretation  of  it, 
being  a  part  of  the  enforcement,  comes  into  the  hands  of  the  law. 

"The  process  of  interpretation,  then,  though  it  is  commonly  simple 
and  often  unobserved,  is  always  present,  being  inherently  indispen- 
sable. The  method  of  it  consists  in  ascertaining  the  actor's  associa- 
tions or  connections  between  the  terms  of  the  act  and  the  various 
possible  objects  of  the  external  world.  Those  terms  may  be  dramatic 
or  verbal.  The  lantern  of  Paul  Revere,  and  the  twenty-one  guns  of 
a  warship's  salute,  are  as  much  the  subject  of  interpretation  as  the 
words  of  a  will.  In  all  cases,  the  process  is  that  of  applying  the 
symbol  or  word  to  external  objects.  Since  men  cannot  go  out  and 
instantaneously  transform,  with  the  presto  of  a  magician,  the  existing 
to  the  desired  state  of  things,  they  must  embody  their  will  in  marks 
which  will  serve  to  point  out  the  effects  desired,  and  then  wait  for  the 
law,  or  for  some  one's  voluntary  obedience  to  it,  to  effect  the  realiza- 
tion of  the  effects  thus  pointed  out  in  advance.  The  process  of  in- 
terpretation may  be  compared  to  a  wireless  telegraph  station.  A 
vessel  approaches  the  coast  and  perceives  the  station-pole  standing 
straight  above  the  cliffs.  Until  the  current  can  be  intercepted,  it  is 
but  a  useless  rod  of  steel;  it  sends  no  message  and  accomplishes  no 
purpose.  It  may  have  any  one  of  various  attunements ;  and  it  will 
tell  nothing  until  a  similar  attunement  be  established  by  the  vessel. 
To  ascertain  that  attunement,  the  particular  country  where  it  is  fixed 
must  be  known,  and  then  the  official  records  of  its  methods  and  sig- 
nals must  be  consulted.  Not  until  then  can  the  station's  message  be 
made  actual  to  the  vessel. 

"Such  is  the  process  of  interpretation.  The  analogy  of  the  tele- 
graph-station illustrates  the  important  distinction  between  the  ttwo 
great  divisions  of  the  process.  The  first  question  must  always  be, 
What  is  the  standard  of  interpretation?  The  second  question  is,  In 
what  sources  is  the  tenor  of  that  standard  to  be  ascertained?  Some- 
times one  or  the  other  of  these  questions  may  interpose  no  difficulty; 
but  both  must  always  be  settled. 

4— Answer  of   the  Judges   to   the   House  matter    of    fact?'      We    find    a   difficulty   in 

of    Lords,    22    How.    St.    Tr.    301     (1789):  separating    the    sense    of    the    letter    from 

"Your     lordships     ask     us,     'whether     the  the    letter.      The    paper    without    the    sense 

sense   of   the   letter    be    matter    of   law    or  is   not   a    letter." 


654  PAROL  EVIDENCE  RULE.  No.  580. 

"(i)  The  standard  of  interpretation,  as  involved  in  legal  acts,  is 
the  personality  whose  utterances  are  to  be  interpreted.  There  are 
practically  four  different  available  standards.  First,  there  is  the 
standard  of  the  normal  users  of  the  language  of  the  forum,  the  com- 
munity at  large,  represented  by  the  ordinary  meaning  of  words.  Next, 
there  is  the  standard  of  a  special  class  of  persons  within  the  com- 
munity,— the  followers  of  a  particular  trade  or  occupation,  the  mem- 
bers of  a  particular  religious  sect,  the  aUens  of  a  particular  tongue, 
the  natives  of  a  particular  dialect,  who  use  certain  words  in  a  sense 
common  to  the  entire  class,  but  different  from  that  of  the  community 
at  large.  Thirdly,  there  is  the  standard  of  the  specific  parties  co- 
operating in  a  bilateral  act,  who  may  use  words  in  a  sense  common  to 
themselves  and  unknown  to  any  others.  Finally,  there  is  the  standard 
of  an  individual  actor,  who  may  use  words  in  a  sense  wholly  peculiar 
to  himself;  and  here  the  question  will  naturally  arise  whether  he  may 
insist  on  his  individual  standard  in  the  interpretation  of  the  words  of 
a  contract,  or  even  of  a  uniliteral  act  such  as  a  will.  The  first  inquiry 
in  interpretation,  then,  is  to  determine  which  of  these  standards  is 
the  proper  one  for  the  particular  act  to  be  interpreted;  and  for  this 
purpose  certain  working  rules  have  to  be  formulated. 

"(2)  The  sources  for  ascertaining  the  tenor  of  the  standard  form 
the  second  object  of  inquiry.  Since  interpretation  consists  in  ascer- 
taining the  associations  between  the  specific  terms  used  and  certain 
external  objects,  and  since  these  associations  must  be  somehow  know- 
able  in  order  to  proceed,  the  question  is  where  they  are  to  be  looked 
for.  So  far  as  the  standard  of  interpretation  is  solely  the  normal 
one  of  the  community,  the  inquiry  is  a  simple  one ;  the  usage  of  the 
community  (as  represented  in  dictionaries  and  elsewhere)  is  the 
source  of  information.  But  that  standard  (as  will  be  seen)  is  rarely 
the  exclusive  one.  The  mtitual  standard  of  parties  to  a  bilateral  act, 
and  for  wills  the  individual  standard  of  the  testator,  is  constantly 
conceded  to  control ;  and  it  then  becomes  necessary  to  search  among 
the  prior  and  subsequent  utterances  of  the  party  or  parties  to  ascer- 
tain their  usage,  or  fixed  associations  with  the  terms  employed.  In 
resorting  to  these  data,  the  question  then  arises  whether  there  is  any 
prohibitive  rule  of  law  which  limits  the  scope  of  search  and  forbids 
the  use  of  certain  data.  These  rules,  if  any,  form  the  second  part  of 
the  law  of  interpretation. 

"Before  proceeding,  however,  to  these  two  parts  of  the  subject  in 
order,  it  is  necessary  to  fix  upon  a  terminology  and  to  avoid  misunder- 
standing in  the  use  of  words.  When  we  seek  to  ascertain  the  standard 
and  sources  of  interpretation  and  thereby  discover  the  actor's  associa- 
tion of  words  with  external  objects,  what  is  the  term,  in  one  word, 
which  describes  the  object  of  search?  Is  it  the  person's  'meaning'? 
Or  is  it  his  'intention'?  Over  this  difference  of  phraseology  has  per- 
sisted   an   endless    controversy,   which,    like   that   of   the   two   knights 


KO.  580.  D.      INTERPRETATION  OF  LEGAL  ACTS.  655 

and  the  shield  at  the  cross-roads,  is  after  all  resolvable  mainly  into  a 
difference   of  words   only. 

"  'Intention^  and  'Meaning/  distinguished.  The  distinction  be- 
tween 'intention'  and  'meaning'  is  vital.  The  distinction  is  inde- 
pendent of  any  question  over  the  relative  propriety  of  these  names ; 
for  there  exist  two  things,  which  must  be  kept  apart,  yet  never  can 
be  unless  different  terms  are  used.  The  words  'will'  and  'sense'  may 
be  taken  as  sufficiently  indicative  of  these  two  things  and  free  from 
the  ambiguity  of  the  other  terms. 

"Will  and  Sense,  then,  are  distinct.  Interpretation  as  a  legal 
process  is  concerned  with  the  Sense  of  the  word  used,  and  not  with 
the  Will  to  use  that  particular  word.  The  contrast  is  between  that 
Will,  volition,  or  intent  to  utter,  as  the  subjective  element  of  an  act, 
making  a  person  responsible  for  a  particular  utterance  as  his,  and 
that  Sense  or  meaning  which  involves  the  fixed  association  between 
the  uttered  word  and  some  external  object.  It  has  already  been  seen 
that  by  the  general  canon  of  legal  acts,  the  person's  actual  will  or 
intent  to  utter  a  given  word  can  seldom  be  considered  for  legal  pur- 
poses. If  he  has  exercised  a  volition  to  utter  something,  then  he  is 
responsible  for  such  utterances  as  in  external  appearance  the  utter- 
ance he  intended, — whether  or  not  he  actually  intended  it.  On  the 
other  hand,  the  sense  of  his  word  as  thus  uttered — his  fixed  associa- 
tion between  that  symbol  and  some  external  object — may  usually  be 
given  full  effect,  if  it  can  be  ascertained.  The  rules  for  the  two  things 
may  be  different.  The  law  has  thus  constantly  to  emphasize  the  con- 
trast between  the  prohibitive  rule  applicable  to  the  execution  of  an 
act,^  and  the  present  permissive  rule  applicable  to  its  interpretation. 
Judges  are  desirous,  when  investigating  the  sense  of  the  words  as 
uttered  by  the  person,  of  emphasizing  that  they  do  not  violate  the 
rule  against  inquiring  whether  he  actually  intended  to  utter  those 
words.  Hence  the  reiteration  of  the  contrast  between  'intention'  and 
'meaning' : 

1789,  Kenyan,  L.  C.  J.,  in  Hay  v.  Coventry,  3  T.  R.  83,  86:  "We  must 
collect  the  meaning  of  tlie  testator  from  those  words  which  he  has  used,  and 
cannot  add  words  which  he  has  not  used." 

1833,  Parke,  J.,  in  Doc  v.  Gzvillim.  5  B.  &  Ad.  122,  129:  "In  expounding 
a  will,  the  Court  is  to  ascertain,  not  what  the  testator  actually  intended,  as 
contradistinguished  from  what  his  words  express,  hut  what  is  the  meaning 
of  the  words  he  used." 

1833,  Demnan,  L  C.  J.,  in  Rickman  v.  Carstairs,  5  B.  &  Ad.  663 :  "The 
question  .  .  .is  not  what  was  the  intention  of  the  parties,  but  what  is 
the  meaning  of  the  words  they  have  used." 

"The  common  terminology  of  these,  judicial  explanations  is  unfor- 
tunate, because  'meaning'  has  a  suggestion  of  the  state  of  the  person's 
mind  as  fixed  on  certain  objects,  and  'intention'  bears  the  same  sug- 
gestion.    The  constant  exclusion  of  the  state  of  the  person's  mind  in 

I — Ante,    Nos.    S34-544- 


656  PAROL  EVIDENCE  RULE.  Ko.  580. 

one  aspect  and  its  consideration  in  another  aspect  are  thus  apparently 
contradictory  and  irreconcilable.  But  the  terms  'will,'  or  'volition,' 
and  'sense,'  serve  to  avoid  this  ambiguity.  They  emphasize  the  dis- 
tinction that  the  will  to  utter  a  specific  M^ord  is  one  thing,  and  the 
fixed  association  of  that  word  is  another  thing.  Thus  the  Execution 
of  the  act  and  its  Interpretation  as  executed  are  kept  distinct. 

"The  analogy  of  other  symbols  than  words  will  best  illustrate  how 
common  and  fundamental  is  this  difference  in  other  affairs,  and  how 
instinctively  it  is  appreciated  and  applied.  Suppose  a  foreign  vessel 
to  be  coasting  the  shore  and  entering  various  harbors  where  the  Gov- 
ernment maintains  a  uniform  system  of  harbor-buoys  in  various  colors 
and  shapes,  indicating  respectively  channels,  sandbars,  sunken  rocks, 
and  safe  anchorages;  here  the  significance  of  each  kind  of  buoy  is 
known  to  be  the  same  in  every  harbor  under  Government  control. 
But  suppose  the  vessel  to  enter  a  harbor  or  inlet  under  the  control  of 
an  individual  or  a  city  having  a  peculiar  and  different  code  of  usage 
for  the  buoys;  here  it  is  immaterial  whether  a  red  buoy  under  the 
Government  system  signifies  a  channel  or  a  sandbar;  the  vital  ques- 
tion for  the  vessel  now  is  what  a  red  buoy  signifies  under  the  code 
of  the  local  authority,  and  all  other  systems  of  meaning  are  thrown 
aside  as  useless.  This  illustrates  that  though,  in  interpreting  a  per- 
son's (for  example,  a  testator's)  words,  we  are  concerned  with  his 
individual  meaning,  as  distinguished  from  the  customary  sense  of 
words,  still  we  are  not  dealing  with  his  state  of  mind  as  to  volition, 
but  with  the  associations  affixed  by  him  to  an  expressed  symbol  as 
indicating  to  others  an  external  object.  That  is  to  say,  the  local  harbor 
authorities  may  have  'intended'  to  put  a  green  buoy  instead  of  a  red 
buoy,  or  to  have  put  the  red  buoy  at  another  spot ;  they  may  have 
made  a  'mistake,'  just  as  the  testator  may  have  intended  to  use  other 
words;  but  in  both  cases  the  state  of  mind  as  to  volition,  or  mistake, 
is  a  wholly  different  thing  from  the  fixed  association,  according  to 
that  individual's  standard,  between  the  expressed  symbol  and  some  ex- 
ternal object.  To  illustrate  another  aspect  of  the  subject,  suppose  a 
game  of  chess  to  be  played  by  B  with  his  guest  A.  If  the  two  are  of 
the  same  nation,  their  standards  of  interpretation — for  example,  as 
to  the  shape  of  each  chessman,  the  allowable  moves,  and  the  effect 
of  a  move — will  be  the  same.  But  some  nations  differ  from  others  in 
one  or  more  of  these  respects ;  so  that  if,  for  example,  B's  national 
rules  allowed  a  rook  to  threaten  diagonally  on  the  board,  A  as  guest 
would  accept  and  accommodate  himself,  as  best  he  might,  to  this 
standard  of  operation.  But,  though  this  much  might  be  conceded  to 
B  as  host,  in  the  adoption  of  his  standards  for  giving  meaning  to  his 
acts  of  moving  the  chessmen,  yet  it  would  remain  true  that  his  private 
intent  or  volition,  as  distinguished  from  the  significance  of  his  acts 
of  moving,  would  be  immaterial ;  so  that,  for  example,  his  intent  to 
have  touched  and  moved  a  different  piece,  or  to  have  placed  the  piece 


No.  582.  D.       INTERPRETATION  OF  LEGAL  ACTS.  657 

on  a  dififerent  square,  would  not  be  taken  into  consideration.  So,  again, 
if  A  and  B  engage  in  a  shooting  match,  with  two  targets  of  lOO  yards' 
and  500  yards'  distance,  it  may  be  that,  after  the  shooting,  A  and  B 
will  discover  that  they  have  not  agreed  which  prize  is  to  be  associated 
with  which  target,  or  whether  the  victory  at  the  500-yard  target  is  to 
count  for  more  than  the  victory  at  the  loo-yard  target,  and  they  may 
have  to  repeat  the  match  after  coming  to  a  common  understanding. 
But  in  no  case  would  A  think  of  claiming  that  B,  who  has  hit  the 
loo-yard  bull's-eye,  could  not  win  because  he  was  really  aiming  at  the 
500-yard  target  and  hit  the  other  only  by  mistake;  nor  could  A  have  a 
second  trial,  on  missing  the  500-yard  target,  because  by  mistake  he 
shot  at  the   lOO-yard  target. 

"A  person,  then,  who  wills  to  utter  words  is  like  a  man  placing  a 
buoy,  or  moving  a  chessman,  or  shooting  a  target.  His  will  or  intent 
or  volition  as  to  the  terms  of  the  peculiar  utterance  is  one  thing;  his 
sense  of  meaning  attached  to  the  terms  actually  uttered  is  a  different 
thing.  Whatever  may  be  the  rules  for  the  former  element  of  his  act, 
the  rules  for  the  latter  element  are  independent  of  them." 


STANDARD    OF    INTERPRETATION. 


Brook,  J.,  in  Throckmorton  v.  Tracy,  Plowd.  160  (1554);  (after 
hearing  Saunders  lay  down  three  rules  for  deeds,  of  which  the  third 
was:  "The  words  shall  be  construed  according  to  the  intent  of 
"^•*-  the  parties,  and  not  otherwise")  :  "The  party  ought  ta  direct 
his  meaning  according  to  the  law,  and  not  the  law  according  to  his 
meaning;  for  if  a  man  should  bend  the  law  to  the  intent  of  the  party, 
rather  than  the  intent  of  the  party  to  the  law,  this  would  be  the  way 
*^^o  introduce  barbarousness  and  ignorance  and  to  destroy  all  learning 
and  diligence.  For  if  a  man  was  assured  that  whatever  words  he 
made  use  of,  his  meaning  only  should  be  considered,  he  would  be  very 
careless  about  the  choice  of  his  words,  and  it  would  be  the  source  of 
infinite  confusion  and  uncertainty  to  explain  what  was  his  meaning." 


Jeremy  Bentham,  Rationale  of  Judicial  Evidence,  b.  IX,  pt.  VI, 
c.  IV  (1827;  Bowring's  ed.,  vol.  VII,  p.  556,  note):  "The  refusal  to 
put  upon  the  words  used  by  a  man  in  penning  a  deed  or  a  will 
"°"'  the  meaning  which  it  is  all  the  while  acknowledged  he  put  upon 
them  himself,  is  an  enormity,  an  act  of  barefaced  injustice,  unknown 
everywhere  but  in  English  jurisprudence.  It  is,  in  fact,  making  for  a 
man  a  will  that  he  never  made;  a  practice  exactly  upon  a  par  (im- 
punity excepted)  with  forgery.  Lawyers  putting  upon  it  their  sense? 
Yes,  iheir  own  sense.  But  which  of  all  possible  senses  is  their  own 
sense?    They  are  as  far  from  agreeing  with  one  another,  or  each  with 


658  PAROL  EVIDENCE  RULE,  No.  582. 

himself,  as  with  the  body  of  the  people.  In  evident  reason  and  com- 
mon justice,  no  one  will  ought  to  be  taken  as  a  rule  for  any  other; 
no  more  than  the  evidence  in  one  cause  is  a  rule  for  the  evidence  to 
different  facts  in  another  cause." 


ATTORNEY-GENERAL  v.  SHORE    (1833-43). 
(LADY  HEWLEY'S  CHARITIES.) 

II  Sim.  §p2,  615. 

Lady  Hewley,  a  Presbyterian,  in  1704,  deeded  to  charities  for  the 
assistance  of  "poor  and  godly  preachers  of  Christ's  holy  gospel,"  etc. 
The  trustees  having  become  Unitarians  at  a  later  period,  a  bill 
583  ^^g  f^jg^j  ^.Q  remove  them  and  order  the  trust's  administration 
for  the  benefit  of  persons  described  in  the  deed.  For  this  purpose, 
evidence  of  the  theological  tenets  of  the  sect  to  which  she  belonged, 
and  of  the  usages  of  that  sect,  was  admitted,  by  a  majority  of  the 
judges. 

TiNDAL,  C.  J.:  "The  general  rule  I  take  to  be,  that  where  the 
words  of  any  written  instrument  are  free  from  ambiguity  in  them- 
selves, and  where  external  circumstances  do  not  create  any  doubt  or 
difficulty  as  to  the  proper  application  of  those  words  to  claimants 
under  the  instrument,  or  the  subject-matter  to  which  the  instrument 
relates,  such  instrument  is  always  to  be  construed  according  to  the 
strict,  plain,  common  meaning  of  the  words  themselves ;  and  that,  in 
such  case,  evidence  dehors  the  instrument,  for  the  purpose  of  explain- 
ing it  according  to  the  surmised  or  alleged  intention  of  the  parties  to 
the  instrument,  is  utterly  inadmissible.  If  it  were  otherwise,  na 
lawyer  would  be  safe  in  advising  upon  the  construction  of  a  written 
instrument,  nor  any  party  in  taking  under  it ;  for  the  ablest  advice 
might  be  controlled,  and  the  clearest  title  undermined,  if,  at  some  fu- 
ture period,  parol  evidence  of  the  particular  meaning  which  the  party 
affixed  to  his  words,  or  of  his  secret  intention  in  making  the  instru- 
ment, or  of  the  objects  he  meant  to  take  benefit  under  it,  might  be 
set  up  to  contradict  or  vary  the  plain  language  of  the  instrument  itself. 
The  true  interpretation,  however,  of  every  instrument  being  mani- 
festly that  which  will  make  the  instrument  speak  the  intention  of  the 
party  at  the  time  it  was  made,  it  has  always  been  considered  as  an 
exception,  or,  perhaps,  to  speak  more  precisely,  not  so  much  an  ex- 
ception from,  as  a  corollary  to,  the  general  rule  above  stated,  that 
where  any  doubt  arises  upon  the  true  sense  and  meaning  of  the  words 
themselves,  or  any  difficulty  as  to  their  application  under  the  sur- 
rounding circumstances,  the  sense  and  meaning  of  the  language  may 
be  investigated  and  ascertained  by  evidence  dehors  the  instrument 
itself;  for  both  reason  and  common  sense  agree,  that  by  no  other 
means  can  the  language  of  the  instrument  be  made  to   speak  the  real 


No.  584.        D.   INTERPRETATION  OF  LEGAL  ACTS.  659 

mind  of  the  party.  Such  investigation  does,  of  necessity,  take  place 
in  the  interpretation  of  instruments  written  in  a  foreign  language; 
in  the  case  of  ancient  instruments  where,  by  the  lapse  of  time  and 
change  of  manners,  the  words  have  acquired,  in  the  present  age,  a 
different  meaning  from  that  which  they  bore  when  originally  employed; 
in  cases  where  terms  of  art  or  science  occur;  in  mercantile  contracts, 
which,  in  many  instances,  use  a  peculiar  language,  employed  by  those 
only  who  are  conversant  in  trade  and  commerce ;  and  in  other  in- 
stances in  which  the  words,  besides  their  general  common  meaning, 
have  acquired,  by  custom  or  otherwise,  a  w-ell-known  peculiar,  idio- 
matic meaning,  in  the  particular  country  in  which  the  party  using  them 
was  dwelling,  or  in  the  particular  society  of  which  he  formed  a  mem- 
ber, and  in  which  he  passed  his  life.  .  .  .  But  I  conceive  the  excep- 
tion to  be  strictly  limited  to  cases  of  the  description  above  given,  and. 
to  evidence  of  the  nature  above  detailed."^ 


LiNDLEY,  L.  J.,  in  Re  Jodrell,  L.  R.  44  Ch.  D.  590,  6og,  614  (1890) : 
"I  do  not  propose  to  deal  with  decided  cases  at  all.  It  may  be  that 
there  were  expressions  in  the  documents  then  before  the  Court 
**'*  which  made  the  Judges  come  to  conclusions  which  I  cannot 
arrive  at  when  I  come  to  look  at  the  will  and  codicils  with  which  I 
have  to  deal.  I  do  not  consider  that  a  decision  which  is  more  or  less 
at  variance  with  other  cases  is  wrong  because  it  is  so  at  variance. 
Cases  of  construction  are  useful  when  they  lay  down  canons  or  rules 
of  construction,  and  they  are  useful  when  they  put  an  interpretation 
on  common  forms — whether,  in  deeds,  wills,  or  mercantile  documents. 
They  may  be  valuable  guides;  but  when  I  am  told  that  because  some- 
thing occurs  in  one  will  I  am  to  give  a  precisely  similar  effect  to  a 
similar  expression  occurring  in  another  will  dealing  with  a  different 
property  and  in  another  context,  I  object  altogether  to  do  it.  The 
only  principle  that  I  know  of  is  that  which  has  been  expressed  before. 
Look  at  the  words,  avail  yourself  of  such  evidence  as  is  legitimately 
admissible,  and  see  what  the  testator  has  said,  and  expound  it  as  best 
you  can  with  reference  to  what  is  legitimately  before  you.  .  .  ," 

Bowen,  L.  J. :  "It  seems  to  me  that  the  only  weight  one  can  give 
to  such  language  [as  the  so-called  rule  against  disturbing  a  clear 
meaning]  is  to  treat  it  not  so  much  as  a  canon  of  construction  as  a  coun- 
sel of  caution  to  warn  you  in  dealing  with  such  cases  not  to  give  way 
to  guesses  or  mere  speculation  as  to  the  probabilities  of  an  intention, 
but  to  act  only  on  such  evidence  as  can  lead  a  reasonable  man  to  a 

1 — Lord  Chelmsford,  in  Beacon  L.  &  F.  meaning,    evidence    is    admissible    to    prove 

Ass.    Co.,    I     Moore    P.    C.    n.    s.    73,    98  the    peculiar    sense    in    which    the    parties 

(1862):      "In    order    to    construe    a    term  understood    the    word;    but    it    is    not    ad- 

in   a    written    instrument   where   it   is   used  missible    to    contradict    or     vary     what    is 

in    a    sense     differing     from     its     ordinary  plain." 


660  PAROL  EVIDENCE  RULE.  No.  584. 

distinct  conclusion.  But  I  protest,  that  as  soon  as  you  see  upon  the 
will,  read  by  the  light  of  such  extrinsic  circumstances  as  you  may 
survey,  what  the  true  construction  is,  and  what  the  true  intent'on 
expressed  by  the  testator  is,  then  your  journey  is  performed.  You 
require  no  more  counsellors  to  assist  you;  and  after  once  arriving 
at  the  journey's  end,  to  pause  in  giving  effect  to  the  true  interpreta- 
tion because,  forsooth,  the  language  has  not  been  framed  according  to 
some  measure  or  standard  of  correct  expression,  which  is  supposed  to 
be  imposed  by  judges  out  of  regard  for  social  or  other  reasons,  ap- 
pears to  me  to  be  using  the  language  of  such  learned  judges,  not  as 
laying  down  canons  for  construing  a  will,  but  as  justifications  for  mis- 
construing it.  As  soon  as  you  once  arrive  at  your  journey's  end  you 
have  no  more  to  do  than  to  give  effect  to  the  true  construction  as  you 
see  it." 


TILTON  V.  AMERICAN  BIBLE  SOCIETY  (1880). 
60  N.  H.  S77- 
Bill  in  equity,  by  the  executor  of  the  will  of  Joseph  Tilton,  for 
the  interpretation  of  the  third  item  of  the  will.  Facts  found  by  the 
court.  The  third  item  is,  "I  give  and  bequeath  to  the  Bible  So- 
"^^  ciety.  Foreign  Mission  Society,  the  Home  Mission  Society,  and 
the  Tract  Society,  five  hundred  dollars  each."  There  are  no  societies 
known  by  those  names.  From  185 1  until  his  death  in  1864,  the  tes- 
tator and  his  wife  were  members  of  the  Congregational  church  and 
society  at  Littleton,  and  were  regular  attendants  at  the  services  and 
meetings  of  the  church  and  society.  Subject  to  the  plaintiff's  excep- 
tion, it  was  proved  that  during  that  time,  at  such  meetings,  annual 
contributions  were  taken  for  the  New  Hampshire  Bible  Society,  the 
American  Board  of  Commissioners  for  Foreign  Missions,  the  New 
Hampshire  Home  Missionary  Society,  and  the  American  Tract  So- 
ciety (who  are  defendants  claiming  the  legacies) ;  that  when  such 
contributions  were  taken,  they  were  called  collections  for  the  New 
Hampshire  Bible  Society,  Foreign  Missions,  the  New  Hampshire  Mis- 
sionary Society,  and  the  American  Tract  Society;  and  that  during 
the  same  period  a  similar  custom  of  contribution  for  the  same  societies 
prevailed  in  the  other  Congregational  churches  and  societies  of  this 
state,  the  donees  being  usually  designated  as  the  Bible  Society,  Foreign 
Missions,  Home  Missions,  and  the  Tract  Society.  There  was  no  evi- 
dence that  the  testator  had  knowledge  of  the  usage  in  other  towns  than 
Littleton,  except  his  connection  with  the  Littleton  church  and  society. 
Franklin  Tilton  was  a  member  of  the  Congregational  church  and  so- 
ciety at  Littleton  from  July,  1858,  until  his  death,  was  a  regular  at- 
tendant at  their  meetings,  and  took  part  therein,  during  a  part  of  the 
time  was  superintendent  of  the  Sabbath-school,  and  was  familiar  with 
the  usages  of  the  church  and  society.     The  residuary  legatees  contend 


No.  586.        D.   INTERPRETATION  OF  LEGAL  ACTS.  661 

that  the  bequests  of  the  third  item  are  void  for  uncertainty.  Upon 
these  facts  the  Court  found  that  the  societies  for  whom  the  annual 
contributions  were  taken  were  the  societies  which  the  testatoi  intended 
to  make  legatees  in  the  third  item  of  his  will. 

Doe,  C.  J.:  "The  question  is  not  whether  a  plea  of  misnomer  of 
a  party  is  sustained  by  proof,  nor  whether  there  is  a  variance  between 
tha  evidence  and  the  name  of  a  third  person  set  forth  in  pleading.  The 
question  is  not  by  what  name  any  Bible  society  was  known  to  others, 
but  which  one  of  several  Bible  societies  was  intended  by  the  testator. 
.  .  .  Evidence  showing  what  name  was  given  to  a  Bible  society  in  its 
character,  what  nam.e  it  used  or  recognized  as  its  own,  and  by  what 
name  or  names  it  was  known  to  others,  tends  to  prove  a  name  by 
which  the  legatee  might  have  been  known  to  the  testator,  and  a  name 
which  he  might  have  used  in  his  will  to  express  his  intention.  But 
the  society  intended  by  him,  and  identified  by  competent  evidence,  is 
the  legatee,  by  whatever  name  described  in  the  will,  and  notwithstand- 
ing any  other  name  or  names  by  which  it  may  have  been  invariably 
or  usually  known  to  others.  ...  A  person  known  to  a  testator  as 
A.  B.,  and  to  all  others  as  C.  D.,  may  take  a  legacy  given  to  A.  B."^ 


MYERS  V.  SARL   (i860). 
S  E.  &  E.  306. 

Action  for  a  sum  due  on  a  building  contract.  By  the  con- 
tract it  was  provided  that  "no  alteration  or  additions  shall  be  admitted 
unless  directed  by  the  architects  of"  the  defendants  "in  writing 
^^"  under  his  hand;  and  a  weekly  account  of  the  work  done  there- 
under shall  be  delivered  to  the  said  architect  or  the  clerk  of  the  works 
on  every  Monday  next  ensuing  the  performance  of  such  work ;  and 
the  delivery  of  such  account  shall  be  a  condition  precedent  to  the  right 
of"  the  plaintiff  "to  recover  payment  for  such  addition  or  alteration." 
It  was  contended  before  the  arbitrator,  on  behalf  of  the  defendants, 
that  the  plaintiff  was  not  entitled  to  recover  for  some  of  the  extra 
work  done  by  him,  on  the  ground  that  the  same  was  not  directed  to 
be  done  by  the  architect  by  any  writing  under  his  hand  pursuant  to 
the  clause  in  the  contract  above  set  out,  and  also  on  the  ground  that 
no  sufficient  weekly  accounts  of  such  work  were  delivered  by  the 
plaintiff  within  the  meaning  of  that  clause.  With  respect  to  the  latter 
objection  it  appeared  in  evidence  that  certain  accounts  of  the  extra 
work  were  delivered  by  the  plaintiff  as  and  for  weekly  accounts  within 
the  meaning  of  the  contract;  and  it  was  contended  on  his  behalf  that 
the  term  "weekly  account,"  as  used  in  the  contract,  was  a  term  of 
art  well  known  in  the  building  trade  and  to  all  builders  and  archi- 
tects, and  that  parol   testimony  was   admissible  to  prove  its  meaning. 

I — Compare  the  authorities  cited  in  W.,   §  2463. 


662  PAROL  EVIDENCE  RULE.  No.  586. 

The  admissibility  of  such  evidence  was  objected  to  on  the  part  of  the 
defendants.  The  arbitrator  held  that  the  words  used  were  a  term  of 
art,  and  that  such  evidence  was  admissible:  and  he  accordingly  re- 
ceived the  same. 

Hill,  J.:  "The  question  turns  upon  the  meaning  to  be  given,  in 
the  contract,  to  the  words  'a  weekly  account  of  the  work  done  there- 
under.' Mr.  Lush  says  that  the  plain,  ordinary  meaning  of  these 
words  is  a  'weekly  account  of  all  the  work  done  thereunder.'  The 
usage  of  the  trade  is  proved  to  be  that  they  mean  'a  weekly  account 
of  the  day  work  done  thereunder.'  We  have  to  determine  whether 
evidence  of  that  usage  was  rightly  received.  Now  the  rule  governing 
the  admissibility  of  evidence  to  explain  the  language  of  contracts  is, 
that  words  relating  to  the  transactions  of  common  life  are  to  be  taken 
in  their  plain,  ordinary,  and  popular  meaning;  but  if  a  contract  be 
made  with  reference  to  a  subject-matter  as  to  which  particular  words 
and  expressions  have  by  usage  acquired  a  peculit^-  meaning  different 
from  their  plain,  ordinary  sense,  the  parties  to  such  a  contract,  if  they 
use  those  words  or  expressions,  must  be  taken  to  have  used  them  in 
their  restricted  and  peculiar  signification.  And  parol  evidence  is  ad- 
missible of  the  usage  which  affixes  that  meaning  to  them.  The  ad- 
missibility of  such  evidence  does  not  depend  upon  whether  the  expres- 
sion to  be  construed  is  ambiguous  or  unambiguous ;  but  merely  upon 
whether  or  not  the  expression  has,  with  reference  to  the  subject- 
matter  of  the  contract,  acquired  the  peculiar  meaning." 

Blackburn,  J.:  "I  am  of  the  same  opinion.  I  agree  with  my 
brother  Hill  that  the  words  of  a  written  commercial  contract  are  to 
be  understood  in  the  sense  which  they  have  acquired  in  the  trade  to 
which  the  contract  relates.  It  is  a  prima  facie  presumption  that,  if 
the  parties  to  such  a  contract  use  expressions  which  bear  a  peculiar 
meaning  in  the  trade,  they  use  them  in  that  peculiar  meaning,  which 
can  be  ascertained  only  by  parol  evidence.  I  do  not  think  that  it  is 
necessary,  in  order  to  render  such  evidence  admissible,  that  there 
should  be  any  ambiguity  on  the  face  of  the  phrase  which  has  to  be 
construed.  ...  I  take  it  to  be  the  true  rule  of  law  upon  the  subject  that 
when  it  is  shown  that  a  term  or  phrase  in  a  written  contract  bears  a 
peculiar  meaning  in  the  trade  or  business  to  which  the  instrument 
relates,  that  meaning  is  prima  facie  to  be  attributed  to  it;  unless  upon 
the  construction  of  the  whole  contract  enough  appears,  either  from 
express  words  or  by  necessary  implication,  to  show  that  the  parties 
did  not  intend  that  meaning  to  prevail.  The  consequence  is  that  every 
individual  case  must  be  decided  on  its  own  grounds. "^ 

I — Coleridge,    J.,    in    Brown    v.    Byrne,  meaning    unambiguous;     for    the    principle 

3    E.   &  B.   703    (1854):      "Neither,   in   the  of  admission  is  that  words  perfectly  unam- 

construction     of    a    contract    among    mer-  biguous     in     their     ordinary    meaning    are 

chants,    tradesmen,    or   others,    will    the   evi-  used     by     the     contractors     in     a     different 

dence    [of  a  local   usage]    be  excluded   be-  sense   from   that.      What  words  more   plain 

cause    the    words    are    in    their    ordinary  than   'a  thousand,'   'a  week,'   'a  day'?     Yet 


No.  587.  D.       INTERPRETATION  OF  LEGAL  ACTS.  663 

VIOLETTE  V.  RICE  (1899). 

17s  Mass.  82,  5 J  N.  E.  144. 

Holmes^  J. :  "This  is  a  bill  in  equity  to  reach  and  apply  property 
which  is  alleged  to  have  been  conveyed  in  fraud  of  the  plaintiff,  claim- 
ing damages  for  a  breach  of  contract  to  employ  the  plaintiff  in 
^^*  the  part  of  'Bertha  Gessler'  in  a  play  called  'Excelsior  Junior.' 
The  contract  was  in  w^riting,  and  engaged  the  plaintiff  in  general 
terms  'to  render  services  at  any  theaters,'  etc. ;  the  plaintiff  agreeing 
'to  conform  to  and  abide  by  the  rules  and  regulations  adopted  by  said 
Edward  E.  Rice  for  the  government  of  said  companies.'  ...  At  the 
hearing  evidence  was  taken  de  bene  that  at  the  time  of  signing  the 
contract  it  was  agreed  that  the  general  word  'services'  meant  services 
in  the  particular  part  named.  This  evidence  ultimately  was  rejected, 
and  the  only  question  is  whether  it  should  have  been  admitted. 

"We  are  of  opinion  that  the  evidence  could  not  be  received.  .  .  . 
The  engagement  to  render  services  expressed  a  general  employment, 
which  could  not  be  limited  to  a  single  part  without  contradiction ;  for 
to  give  evidence  requiring  words  to  receive  an  abnormal  meaniig  is 
to  contradict.  It  is  settled  that  the  normal  meaning  of  language  in  a 
written  instrument  no  more  can  be  changed  by  construction  than  it 
can  be  contradicted  by  an  avowedly  inconsistent  agreement,  on  the 
strength  of  the  talk  of  the  parties  at  the  time  when  the  instrument 
was  signed.  .  .  .  When  evidence  of  circumstances  or  local  or  class 
usage  is  admitted,  it  tends  to  show  the  ordinary  meaning  of  the  lan- 
guage in  the  mouth  of  a  normal  speaker,  situated  as  the  party  using 
the  language  was  situated ;  'but  to  admit  evidence  to  show  the  sense 
in  which  the  words  were  used  by  particular  individuals  is  contrary  to 
sound  principle.'  Drummond  v.  Attorney  General,  2  H.  L.  Cas.  837, 
863.  .  .  .  The  case  of  Keller  v.  Webb,  125  Mass.  88,  goes  a  good  way, 
but  was  not  intended,  we  think,  to  qualify  the  principle,  settled  by  the 
earlier  and  later  Massachusetts  cases,  some  of  which  we  have  cited. 
In  that  case  evidence  of  conversation  was  admitted  to  show  that 
'casks'  in  a  written  contract,  meant  casks  of  a  certain  weight.  It  was 
assumed  that  the  contract  meant  casks  of  some  certain  weight,  but 
did  not  state  what,  and  thus  that  the  evidence  supplemented,  without 
altering,  the  written  words.  A  similar  explanation  applies  to  Stoops  v. 
Smith,  100  Mass.  63."- 

the   cases   are    familiar    in    which    'a    thou-  one.      It    would    open    too    great    riskj,    if 

sand'   has   been   held   to   mean    'twelve   hun-  evidence     were     admissible     to     show     that 

dred,'    'a    week'    'a    week    only    during    the  when    they    said     five    hundred     feet    they 

theatrical     season,'      'a     day'      'a     working  agreed      it      should      mean      one      hundred 

day.'  "  inches,    or    that     Bunker    Hill     Monument 

2 — Holmes.    J.,    in    Goode    v.    Ritcy,    153  should  signify  the  Old  South   Church.     An 

Mass.    58s,   28    N.    E.    228    (1891):      "You  artificial    construction    cannot    be    given    to 

cannot    prove    a    mere    private    convention  plain    words   by   express   agreement." 

between   the   two   parties    to   give   language  Compare    the    authorities    cited    in    W., 

a     different     meaning     from     its     common  §  2463. 


664  PAROL  EVIDENCE  RULE.  No.  588. 


WALLS  V.  BAILEY  (1872). 
49  N.  Y.  463,  473- 

This  action  was  instituted  to  recover  a  balance  alleged  to  be  due  to 
the   plaintiffs    for   plastering    the    defendant's    house.     The    work    in 
question  was  done  under  a  written  contract,   of  which  the   fol- 
lowing  is  a  copy: 

"Buffalo,  N.  Y.,  January  18,  1869. 

"We  hereby  agree  to  do  the  plastering  work  of  house  now  being 
built  by  George  Bailey,  on  Main  street,  at  the  prices  named  below,  viz. : 

"For  one  coat  work,  twenty-five  cents  per  square  yard. 

"For  two  coat  work  with  hard  finish,  thirty-three  cents  per  square 
yard. 

"The  prices  to  include  all  labor  and  cost  of  material,  we  paying 
said  Bailey  the  invoice  price  for  all  laths  purchased  and  supplied  by 
him.  All  work  to  be  done  with  the  'International  Lime  Company's' 
lime;  the  laths  to  be  securely  nailed  before  plastering,  and  all  work 
to  be  done  in  a  good,  workmanlike  manner,  and  to  the  satisfaction  of 
said  Bailey. 

"Plastering  with  hydraulic  cement,  forty-five  cents  per  square  yard, 
to  be  done  in  a  good,  workmanlike  manner,  and  to  the  satisfaction  of 
said  Bailey.  Walls  &  Leck." 

The  plaintiffs  claimed  that  in  determining  the  number  of  square 
yards  for  which  they  are  entitled  to  pay,  under  the  agreement,  the 
openings,  including  doors  and  windows,  are  to  be  measured  as  plaster- 
ing. That  in  rooms  plastered  with  two  or  three  coat  work,  the  part 
of  the  work  behind  the  cornice  and  base-board  is  to  be  measured  as 
though  actually  plastered  with  two  or  three  coats,  though  the  same 
was  only  plastered  with  one  coat.  This  claim  was  based  on  the  as- 
sumption that  at  the  time  the  agreement  was  made  it  was  the  custom 
of  plasterers  in  the  city  of  Buffalo  to  measure  and  charge  for  openings ; 
and  for  wall  not  plastered,  where  the  same  was  covered  by  a  cornice 
or  base-board.  The  Court  allowed  proof  of  such  custom  to  be  given  on 
the  trial  under  defendant's  objections.  Defendant  was  called  as  a 
witness  in  his  own  behalf,  and  his  counsel  asked  him  this  question: 
"When  you  made  the  contract  had  you  any  knowledge  of  any  custom 
in  Buffalo  of  measuring  openings  in  measuring  plastering?"  This 
was  objected  to  and  the  Court  excluded  the  testimony.  The  Court 
charged  that  the  contract  was  to  be  construed  with  reference  to  the 
custom  of  the  place  where  made,  that  such  custom  must  be  reasonable 
and  public,  general  and  uniform,  to  which  defendant  excepted.  The 
jury  found  a  verdict  for  the  full  amount  claimed  by  the  plaintiffs. 

FoLGER,  J. :  "The  contract  between  the  parties  was  in  writing. 
By   it  the  plaintiffs   were   to    furnish  the   material   for  the   plastering 


No,  588.        D.   INTERPRETATION  OF  LEGAL  ACTS.  665 

work  of  the  defendant's  house,  and  to  do  the  work  of  laying  it  on. 
The  defendant  was  to  pay  them  for  the  work  and  material  a  price 
per  square  yard.  Of  course,  the  total  of  the  compensation  was  to  be 
got  at  by  measurement.  But  when  the  parties  came  to  determine  how 
many  square  yards  there  were,  they  differed.  The  query  was,  the 
square  yards  of  what?  Of  the  plaster  actually  laid  on,  or  of  the  whole 
side  of  the  house,  calling  it  solid,  with  no  allowance  for  the  openings 
by  windows  and  doors  ?  .  .  .  Evidence  of  usage  is  received,  as  is  any 
other  parol  evidence,  when  a  written  contract  is  under  consideration. 
It  is  to  apply  the  written  contract  to  the  subject-matter,  to  explain 
expressions  used  in  a  particular  sense,  by  particular  persons,  as  to 
particular  subjects,  to  give  effect  to  language  in  a  contract  as  it  was 
understood  by  those  who  made  use  of  it.  The  jury,  in  the  case  before 
us,  have  found  the  existence  of  the  usage  contended  for  by  the  plain- 
tiffs, and  upon  evidence  which  well  sustains  the  finding.  The  same 
evidence  shows  that  the  usage  was  uniform,  continuous  and  well  set- 
tled. Xor  was  it  one  which  was  in  opposition  to  well  settled  principles 
of  law,  or  which  was  unreasonable.  .  .  . 

"These  views  dispose  of  the  points  made  by  the  appellant  in  this 
court,  save  the  one  that  the  trial  court  erred  in  overruling  the  ques- 
tion put  to  the  defendant  when  on  the  stand  as  a  witness  in  his  own 
behalf,  to  wit :  'When  you  made  that  contract,  had  you  any  knowledge 
of  any  custom  in  Buffalo  of  measuring  openings  in  measuring  plaster- 
ing?' ...  It  would  seem,  however,  that  upon  principle,  for  a  party 
to  be  bound  by  a  local  usage,  or  a  usage  of  a  particular  trade  or  pro- 
fession, he  must  be  shown  to  have  knowledge  or  notice  of  its  exist- 
ence. For  upon  what  basis  is  it  that  a  contract  is  held  to  be  entered 
into  with  reference  to,  or  in  conformity  with,  an  existing  usage? 
Usage  is  engrafted  upon  a  contract  or  invoked  to  give  it  a  meaning, 
on  the  assumption  that  the  parties  contracted  in  reference  to  it;  that 
is  to  say,  that  it  was  their  intention  that  it  should  be  a  part  of  their 
contract  wherever  their  contract  in  that  regard  was  silent  or  obscure. 
But  could  intention  run  in  that  way  unless  there  was  knowledge  of 
the  way  to  guide  it  ?  No  usage  is  admissible  to  influence  the  con- 
struction of  a  contract  unless  it  appears  that  it  be  so  well  settled,  so 
uniformly  acted  upon,  and  so  long  continued,  as  to  raise  a  fair  pre- 
sumption that  it  was  known  to  both  contracting  parties,  and  that  they 
contracted  in  reference  thereto.  There  must  be  some  proof  that  the 
contract  had  reference  to  it,  or  proof  arising  out  of  the  position  of 
the  parties,  their  knowledge  of  the  course  of  business,  their  knowledge 
of  the  usage,  or  other  circumstance  from  which  it  may  be  inferred  or 
presumed  that  they  had  reference  to  it.  .  .  .  The  jury  may  presume, 
from  all  the  circumstances  of  the  case,  that  knowledge  or  notice  ex- 
isted. ...  It  seems  then,  to  come  to  this :  Is  the  presumption,  which 
the  jury  may  thus  make  conclusive,  or  may  not  that  presumption  be 
repelled  by  express  negatory  proof  of  ignorance?    When  the  defendant 


666  PAROL  EVIDENCE  RULE.  NO.  588. 

proposed,  by  the  question  which  was  rejected,  to  offc  evidence  tending 
to  show  his  ignorance  of  the  existence  of  the  usage,  he  claimed  no 
more  than  to  exercise  the  right  of  attempting,  by  direct  evidence,  to 
repel  the  presumption  of  his  knowledge,  which  might  without  that 
proof,  or  perhaps  in  opposition  to  it,  be  made  from  the  facts  of  the 
case.  ...  In  this  view  it  was  proper  for  the  defendant  to  put  and  an- 
swer the  question  rejected."^ 


STOOPS  V.  SMITH  (1868). 
100  Mass.  63. 

The  defendant  having  agreed  to  pay  the  plaintiff  "for  inserting 
business  card  in  200  copies  of  his  advertising  chart,"  the  defendant, 
refusing  to  pay,  offered  to  show  that  the  chart,  as  understood 
"  between  them,  meant  a  chart  of  cloth,  to  be  posted  up  m  two 

hundred  public  places  near  Worcester,  and  that  no  chart  had  been  so 
made  and  posted. 

Wells,  J. :  "The  writing,  upon  which  this  action  is  brought,  con- 
tains a  promise  on  the  part  of  the  defendant  only.  It  recites,  im- 
perfectly and  in  general  terms,  the  agreement  to  be  performed  on  the 
part  of  the  plaintiff,  as  the  consideration  upon  which  the  promise  of 
the  defendant  is  made.  At  the  trial,  the  defendant  offered  evidence 
to  show  the  whole  arrangement  between  the  parties ;  particularly  the 
representations  of  the  plaintiff  as  to  the  material  of  which  the  chart 
was  to  be  made,  and  the  manner  in  which  it  would  be  published;  and 
contended  that  he  was  not  bound  to  pay,  because  the  plaintiff  had 
failed  so  to  make  and  publish  the  chart.  The  Court  excluded  the  evi- 
dence, and  ruled  that  no  evidence  of  extrinsic  facts  was  admissible 
for  any  purpose. 

"The  alleged  representations  related  to  that  which  was  then  in  the 
future,  and  were,  in  one  aspect,  of  a  promissory  nature.  The  prin- 
ciple of  law  is  clear  and  well  settled,  that  the  obligation  of  a  written 
contract  cannot  be  abridged  or  modified  by  or  made  conditional  upon 
another  preceding  or  contemporaneous  parol  agreement,  not  referred 
to  in  the  writing  itself.  But  it  is  equally  well  settled  that,  for  the  pur- 
pose of  applying  the  terms  of  the  written  contract  to  the'  subject 
matter,  and  removing  or  explaining  any  uncertainty  or  ambiguity 
which  arises  from  such  application,  parol  testimony  is  admissible,  and 
has  a  legitimate  office.  For  this  purpose,  all  the  facts  and  circum- 
stances of  the  transaction  out  of  which  the  contract  arose,  including 
the  situation  and  relations  of  the  parties,  may  be  shown.  The  subject 
matter  of  the  contract  may  be  identified  by  proof  of  what  was  before 
the  parties,  by  sample  or  otherwise,  at  the  time  of  the  negotiation. 
The  terms  of  the  negotiation  itself,  and  statements  therein  made,  may 

3 — Compare  the  authorities  cited  in  W.,   §  2464. 


No.  589.        D.   INTERPRETATION  OF  LEGAL  ACTS.  667 

be  resorted  to  for  this  purpose.  .  .  .  The  purpose  of  all  such  evidence 
is,  to  ascertain  in  what  sense  the  parties  themselves  used  the  ambigu- 
ous terms  in  the  writing  which  sets  forth  their  contract.  If  the 
previous  negotiations  make  it  manifest  in  what  sense  they  understood 
and  used  those  terms,  they  furnish  the  best  definition  to  be  applied 
in  the  interpretation  of  the  contract  itself.  The  effect  must  be  limited 
to  definition  of  the  terms  used,  and  identification  of  the  subject-matter. 
If  so  limited,  it  makes  no  difference  that  the  language  of  the  negotia- 
tions relates  to  the  future,  and  consists  in  positive  engagements  on 
the  part  of  the  other  party  to  the  contract.  Their  effect  depends,  not 
upon  their  promissory  obligation,  but  upon  the  aid  they  afford  in  the 
interpretation  of  the  contract  in  suit.  They  are  not  the 'less  effective 
for  the  purpose  of  explanation  and  definition  because  they  purport  to 
carry  the  force  of  obligation.  The  contract  in  suit  may  illustrate  this 
principle  in  a  point  that  is  not  in  dispute.  The  defendant  agrees  to 
pay  fifty  dollars  'for  inserting  business  card,'  etc.  In  applying  this 
stipulation,  if  the  defendant  had  a  business  card  distinctively  known 
and  recognized  as  such,  there  would  be  no  difficulty  in  giving  effect 
to  the  contract.  But  the  identification  of  that  card  would  involve  the 
whole  principle  of  admitting  parol  evidence  for  the  interpretation  and 
application  of  written  contracts  to  the  subject-matter.  It  could  be 
done  only  by  the  aid  of  parol  testimony.  Suppose  he  had  several 
business  cards,  differing  in  form  and  contents,  but  one  was  selected 
and  agreed  upon  for  the  purpose  at  the  time  the  contract  was  signed; 
or  that  one  had  been  prepared  specially  for  the  purpose.  Clearly  parol 
testimony  would  be  competent  to  identify  the  card  so  selected  or  pre- 
pared ;  and  to  prove  that  the  parties  assented  to  and  adopted  it  as  the 
card  to  which  the  contract  would  apply.  Suppose,  thirdly,  that  no 
such  card  had  been  selected  or  prepared,  but  its  form,  contents  and 
style  had  been  described  verbally  and  assented  to,  and  the  plaintiff 
had  agreed  to  insert  it  as  so  described.  Such  evidence  may  be  resorted 
to,  not  for  the  promise  it  contains,  but  for  the  aid  it  affords  in  fixing 
the  meaning  and  applying  the  general  language  of  the  written  con- 
tract. The  same  considerations  render  the  evidence  offered  by  the  de- 
fendant competent  for  similar  purposes.  The  term  'his  advertising 
chart'  requires  to  be  practically  applied.  The  representations  of  the 
plaintiff  are  in  the  nature  of  a  description  of  the  vehicle  by  which  the 
publication  of  the  business  card  was  to  be  effected;  and  his  account 
of  the  disposition  he  proposed  to  make  of  the  charts  was  a  description 
of  the  extent  and  the  sense  in  which  it  was  to  be  an  'advertising 
chart.'  "'' 

4 — Compare  the  authorities  cited  in  W.,   §  2465. 


668  PAROL  EVIDENCE  RULE.  No.  590. 


RICKERSON  V.  HARTFORD  FIRE  INS  CO.  (1896). 

149  N.  Y.  soy,  43  N.  E.  856. 

This  action  was  founded  upon  a  policy  of  fire  insurance  issued  to 
P.  Sammet  and  J.  Alexander  by  the  Hartford  Fire  Insurance  Company, 
payable  to  the  Washington  Life  Insurance  Company,  as  mort- 
gagee  and  as  its  interest  might  appear,  upon  premises  known  as 
number  160  Mott  street  in  the  city  of  New  York.  .  .  .  On  the  first 
of  May,  1890,  Sammet  and  Alexander  transferred  the  property  to  the 
plaintiff  by  a  conveyance  which  described  the  premises  by  metes  and 
bounds,  and  also  as  "known  and  distinguished  as  number  one  hundred 
and  sixty  Mott  street,"  being  the  same  description  that  there  was  in 
the  mortgage.  At  the  same  time,  both  policies  were  transferred  to 
the  plaintiff,  and  the  change  of  interest  was  duly  noted  and  indorsed 
thereon  by  the  insurance  companies.  .  .  .  The  trial  Court  found  that, 
at  the  date  of  insurance,  "there  were  two  buildings  on  the  lot  known 
as  No.  160  Mott  street,  New  York  city,  viz.,  a  three-story  brick 
building,  fronting  on  the  street,  twenty-five  feet  wide  by  forty-six  feet 
deep,  with  an  extension,  and  a  five-story  brick  building  twenty-four 
feet  wide  and  thirty-nine  feet  deep."  On  the  13th  of  December,  1890, 
a  fire  occurred  that  injured  the  three-story  building  to  the  amount  of 
a  few  hundred  dollars,  but  which  injured  the  five-story  building  to  the 
amount  of  several  thousand  dollars.  The  insurance  companies  repaired 
the  damage  to  the  former  only,  and  refused  to  pay  any  part  of  the 
damage  to  the  latter.  The  complaint  was  dismissed  for  the  reason 
that  the  policy  did  not  cover  the  rear  building,  and  that  the  defendant 
had  fulfilled  its  contract  by  repairing  the  damages  to  the  front  build- 
ing. .  .  . 

Vann,  J. :  "We  have  a  policy  which,  if  it  had  been  read  before  the 
fire  by  a  person  standing  upon  the  premises  and  familiar  with  the 
buildings  and  the  way  they  were  occupied,  would  leave  him  in  doubt 
whether  the  property  insured  embraced  all  the  buildings  or  only  a  part. 
For  this  ambiguity  the  company  is  responsible,  because  it  prepared  and 
executed  the  contract,  and  the  language  used  is  wholly  its  own.  While 
it  is  the  duty  of  the  Court  to  so  construe  the  policy  as,  if  possible,  to 
give  effect  to  every  word  used,  if  the  sense  in  which  they  were  used  is 
uncertain  and  the  meaning  is  ambiguous,  that  meaning  should  be  given 
which  is  most  favorable  to  the  insured.  .  .  .  The  trial  Court,  however, 
resolved  the  doubt  in  favor  of  the  insurer,  as  it  found  that  the  com- 
pany 'intended  to  insure  and  did  insure  only  the  three-story  brick 
building  situate  on  the  front  of  the  lot  No.  160  Mott  street  in  the  city 
of  New  York,'  and  that  it  'did  not  intend  to  insure  and  did  not  insure 
the  five-story  brick  building  situate  on  the  rear  of  the  lot  No.  160 
Mott  street.  New  York  city.'  ...  In  finding  the  fact,  it  is  reasonable 
to  presume  that  he  was  influenced  by  the  testimony  of  the  manager 


i 


No.  590.       D.   INTERPRETATION  OF  LEGAL  ACTS.  669 

of  the  defendant  in  relation  to  tliat  subject.  He  was  asked:  'When 
your  company  issued  this  policy  on  which  this  action  is  brought,  which 
building  did  you  intend  to  insure?'  This  was  objected  to  as  'incom- 
petent, irrelevant  and  immaterial,  and  as  calling  for  a  conclusion ;'  but 
the  objection  was  overruled  and  the  plaintiff  excepted.  The  witness 
answered,  in  substance,  that  he  intended  to  insure  the  front  building 
only.  He  was  then  asked:  'Did  you  intend  to  insure  more  than  one 
building?'  and  subject  to  the  same  objection,  ruling  and  exception,  he 
answered,  'No.'  The  witness  was  thus  permitted  to  testify  to  the 
secret  operation  of  his  own  mind,  although  it  had  not  been  communi- 
cated to  the  other  party  to  the  contract.  He  wrote  the  policy  and 
countersigned  it,  and  in  doing  so  stood  for  the  company.  When  the 
Court  allowed  him  to  state  his  intention  in  issuing  the  policy,  it  vir- 
tually permitted  one  party  to  a  written  agreement  to  state  what  he 
meant  by  it,  against  the  objection  of  the  other.  The  writing,  itself, 
was  the  best  evidence  of  tiie  intent  and  meaning  of  the  company.  As 
its  meaning  was  ambiguous,  evidence  was  properly  received  to  place 
the  court  in  the  position  of  the  parties  and  enable  it  to  appreciate  the 
force  of  the  words  they  used  in  reducing  the  contract  to  writing.  It 
then  became  the  duty  of  the  Court,  sitting  without  a  jury,  to  decide 
what  the  parties,  thus  situated,  meant  by  the  language  employed.  But 
one  party  to  a  written  contract  cannot  state  how  he  understood  it  when 
he  signed  it,  nor  testify  as  to  its  meaning  or  as  to  his  intent.  That 
would  be  a  violation  of  the  rule  that  the  writing  is  the  best  evidence 
and  would  tend  to  destroy  the  effect  of  the  promise.  What  the  parties 
intended  should  have  been  gathered  from  the  contract,  read  in  the 
light  of  the  circumstances  surrounding  them  when  they  used  the  doubt- 
ful words.  Parol  evidence  was  not  admissible  to  show  what  either 
party  secretly  intended,  as  that  would  add  to  or  take  from  the  writing 
which  is  presumed  to  express  the  intention  of  both."' 

S — Blackburn,  J.,  in   Grant  v.   Grant,   L.  of    and    concerning    which    they    are    used, 

R.    5    C.    P.    727,    729    (1870),    quoting    a  and   those  only.      This   does  not    affect  the 

passage    from    his    own    treatise    on    Sales:  law,    but    it    is    of    some    consequence    in 

"The   principles   of  the   rules   of   law  regu-  the    application    of    it,    as    it    narrows    the 

lating    the    admissibility     of    extrinsic     evi-  field    of    inquiry." 

dence  to  aid  the  construction  of  wills  Blackburn,  J.,  in  Smith  v.  Hughes,  L. 
and  of  contracts  required  to  be  in  writ-  R.  6  Q.  B.  597,  607  (1871):  "I  appre- 
ing,  seem  to  be  the  same.  But,  in  ap-  hend  that  if  one  of  the  parties  intends 
plying  them,  it  seems  necessary  to  bear  to  make  a  contract  on  one  set  of  terms, 
in  mind  that  there  is  a  distinction  be-  and  the  other  intends  to  make  a  contract 
tween  the  two  classes  of  instruments.  The  on  another  set  of  terms,  or  as  it  is  some- 
will  is  the  language  of  the  testator,  so-  times  expressed,  if  the  parties  are  not 
liloquizing,  if  one  may  use  the  phrase,  ad  idem,  there  is  no  contract,  unless  the 
and  the  Court  in  construing  his  language  circumstances  are  such  as  to  preclude  one 
may  properly  take  into  account  all  that  of  the  parties  from  denying  that  he  has 
he  knew  at  the  time,  in  order  to  see  in  agreed  to  the  terms  of  the  other.  The 
what  sense  the  words  were  used.  But  the  rule  of  law  is  that  stated  in  Freeman  v. 
language  used  in  a  contract  is  the  Ian-  Cooke.  If,  whatever  a  man's  real  inten- 
guage  used  to  anortier  in  the  course  of  tion  may  he,  he  so  conducts  himself  that 
an  isolated  transaction,  and  the  words  a  reasonable  man  would  believe  that  he 
must  take  their  meaning  from  those  things  was    assenting    to    the    terms    proposed    by 


670 


PAROL  EVIDENCE  RULE. 


No.  59L 


II.       SOURCES     OF     INTERPRETATION. 

Sir  James  Wigram^  V.  C,  Extrinsic  Evidence  in  Aid  of  the  In- 
terpretation of  Wills,  Proposition  V  (1831):  "For  the  purpose  of 
determining  the  object  of  a  testator's  bounty,  or  the  subject  of 
""■*■  disposition,  or  the  quantity  of  interest  intended  to  be  given  by  his 
will  a  Court  may  inquire  into  every  material  fact  relating  to  the  person 
who  claims  to  be  interested  under  the  will,  and  to  the  property  which 
is  claimed  as  the  subject  of  disposition,  and  to  the  circumstances  of 
the  testator  and  of  his  family  and  affairs,  for  the  purpose  of  enabling 
the  Court  to  identify  the  person  or  thing  intended  by  the  testator,  or 
to  determine  the  quantity  of  interest  he  has  given  by  his  will.  The 
same  (it  is  conceived)  is  true  of  every  other  disputed  point,  respect- 
ing which  it  can  be  shown  that  a  knowledge  of  extrinsic  facts  can,  in 
any  way,  be  made  ancillary  to  the  right  interpretation  of  a  testator's 
words."' 


a.    Exception  for  Declarations  of  Intention. 

MILLER  V.  TRAVERS  (1832). 
8  Bing.  244. 

Bill  to  establish  the  will  of  Sir  John  Edward  Riggs  Miller,  Bart. 

TiNDAL,  C.  J. :  "The  testator  by  his  will,  duly  executed,  devised 
'all  his  freehold  and  real  estates  whatsoever,  situate  in  the  county 
^^^  of  Limerick,  and  in  the  city  of  Limerick,'  to  certain  trustees 
therein  named  and  their  heirs.  At  the  time  of  making  his  will  he 
had  no  real  estate  in  the  coilnty  of  Limerick,  but  he  had  a  small  real 
estate  in  the  city  of  Limerick,  and  considerable  real  estates  situate  in 
the  county  of  Clare.  The  real  estate  in  the  city  of  Limerick  is  ad- 
mitted to  have  passed  under  the  devise ;  but  the  plaintiff  contends  that 
he  is  at  liberty  to  show  by  parol  evidence  that  the  testator  intended 
his   estates   in   Clare   also  to  pass   under   the   same   devise. 


the  other  party,  and  that  other  party  upon 
that  belief  enters  into  the  contract  with 
him,  the  man  thus  conducting  himself 
would  be  equally  bound  as  if  he  had  in- 
tended to  agree  to  the  other  party's  terms." 

Compare  the  theory  as  stated  by  Mr. 
Justice  Holmes,  in  "The  Theory  of  Legal 
Interpretation,"  12  Harv.  L.  Rev.  417: 
"Each  party  to  a  contract  has  notice  that 
the  other  will  understand  his  words  accord- 
ing to  the  usage  of  the  normal  speaker 
of  English  under  the  circumstances  and 
therefore  cannot  complain  if  his  words 
are    taken    in    that    sense." 

Compare  the  authorities  cited  in  W., 
§§  2466,  2467,  and  the  doctrine  of  No. 
538,   ante. 


6 — Sugden,  L.  C,  in  Attorney-General 
V.  Drummond,  i  Dr.  &  W.  356  (1842), 
interpreting  a  deed  containing  the  words 
"Christian"  and  "Protestant  dissenter": 
"The  Court  is  at  liberty  to  inquire  into 
all  the  surrounding  circumstances  which 
may  have  acted  upon  the  minds  of  the 
persons  by  whom  the  deed  or  will  (it 
matters  not  whether  it  was  one  or  the 
other)  was  executed.  .  .  .  The  Court  there- 
fore has  not  merely  a  right,  but  it  is  its 
duty  to  inquire  into  the  surrounding  cir- 
cumstances, before  it  can  approach  the 
construction    of    the    instrument    itself." 

Professor  James  Bradley  Thayer,  Pre- 
liminary Treatise  on  Evidence,  445 
(1898):       "It     had     become     possible     for 


No.  592.        D.   INTERPRETATIOX  OF  LEGAL  ACTS.  671 

"The  general  character  of  the  parol  evidence  which  the  plaintiff 
contends  he  is  at  liberty  to  produce,  in  order  to  establish  such  inten- 
tion in  the  devisor,  is  this;  first,  that  the  estate  in  the  city  of  Limerick 
is  so  small  and  so  disproportioned  to  the  nature  of  the  charges  laid  upon 
it,  and  the  trusts  w^hich  are  declared,  as  to  make  it  manifest  there  must 
have  been  some  mistake ;  and  in  order  to  show  what  that  mistake  was. 
the  plaintiff  proposes  to  prove  that  in  the  copy  of  the  will  which  had 
been  submitted  to  the  testator  for  his  inspection,  and  had  been  ap- 
proved and  returned  by  him,  the  devise  in  question  stood  thus :  'AH 
my  freehold  and  real  estates  whatsoever  situate  in  the  counties  of 
Clare,  Limerick  and  in  the  city  of  Limerick ;'  that  the  testator  directed 
some,  alterations  to  be  made  in  other  parts  of  his  will,  and  that  the 
same  copy  of  the  will,  accompanied  with  a  statement  of  the  proposed 
alterations,  was  sent  by  the  testator's  attorney  to  his  conveyancer,  in 
order  that  such  alterations  might  be  reduced  into  proper  form ;  and 
that  upon  such  occasion  the  conveyancer,  besides  making  the  alterations 
directed,  did  by  mistake,  and  without  any  authority,  strike  out  the  words 
'counties  of  Clare'  and  substitute  the  words  'county  of  in  lieu  thereof, 
so  as  to  leave  the  devise  in  question  in  the  same  precise  form  as  it  now 
stands  in  the  executed  will.  The  plaintiff  further  proposes  to  prove 
that  a  fair  copy  of  the  will  so  altered  was  sent  to  the  testator,  who, 
after  having  kept  it  by  him  for  some  time,  executed  the  same  in  the 
manner  required  by  law,  without  adverting  to  the  alteration  above 
pointed  out.  The  plaintiff  contends  that  he  has  a  right  to  prove  that 
the  testator  intended  to  pass  not  only  the  estate  in  the  city  of  Limerick, 
but  an  estate  in  a  county  not  named  in  the  will,  namely,  the  county  of 
Clare,  and  that  the  will  is  to  be  read  and  construed  as  if  the  word 
Clare  stood  in  the  place  of  or  in  addition  to  that  of  Limerick. 

"But  this,  it  is  manifest,  is  not  merely  calling  in  the  aid  of  extrinsic 
evidence  to  apply  the  intention  of  the  testator,  as  it  is  to  be  collected 
from  the  will  itself,  to  the  existing  state  of  his  property;  it  is  calling 
in  extrinsic  evidence  to  introduce  into  the  will  an  intention  not  apparent 
from  a  defective  or  mistaken  description;  it  is  making  the  will  speak 
upon  the  face  of  the  will.  It  is  not  simply  removing  a  difficulty  arising 
upon  a  subject  on  which  it  is  altogether  silent,  and  is  the  same  in  ef- 
fect as  the  filling  up  a  blank  which  the  testator  might  have  left  in  his 
will.  It  amounts,  in  short,  by  the  admission  of  parol  evidence,  to  the 
making  of  a  new  devise  for  the  testator,  which  he  is  supposed  to  have 
omitted.  Now,  the  first  objection  to  the  introduction  of  such  evi- 
dence is  that  it  is  inconsistent  with  the  rule,  which  reason  and  sense  lay 
down,  and  which  has  been  universally  established  for  the  construction 
of  wills,  namely,  that  the  testator's  intention  is  to  be  collected  from  the 

Wigram     to     lay     it     solidly     down,     over  mate    question    arising    in    the    intcrpreta- 

seventy    years    ago,    that,    with    the    excep-  tion     of     writings     and     admissihie     under 

tion     of     direct     statements     of     intention,  the    general    rules    of    evidence,    could    be 

no    extrinsic    fact,    relevant    to    any    legitl-  shut    out." 


672  PAROL  EVIDENCE  RULE.  No.  592. 

words  used  in  the  will,  and  that  words  which  he  has  not  used  cannot 
be  added. 

"But  it  is  an  objection  no  less  strong  that  the  only  mode  of  proving 
the  alleged  intention  of  the  testator  is,  by  setting  up  the  draft  of  the 
will  against  the  executed  will  itself.  As,  however,  the  copy  of  the  will 
which  omitted  the  name  of  the  county  of  Clare  was  for  some  time  in 
the  custody  of  the  testator,  and,  therefore,  open  for  his  inspection, 
which  copy  was  afterwards  executed  by  him  with  all  the  formalities 
required  by  the  Statute  of  Frauds,  the  presumption  is  that  he  must  have 
seen  and  approved  of  the  alteration,  rather  than  that  he  overlooked  it 
by  mistake.  It  is  unnecessary  to  advert  to  the  danger  of  allowing  the 
draft  of  the  will  to  be  set  up  as  of  greater  authority  to  evince  the 
intention  of  the  testator  than  the  will  itself,  after  the  will  has  been 
solemnly  executed,  and  after  the  death  of  the  testator.  If  such  evidence 
is  admissible  to  introduce  a  new  subject-matter  of  devise,  why  not  also 
to  introduce  the  name  of  a  devisee  altogether  omitted  in  the  will? 
If  it  is  admissible  to  introduce  new  matter  of  devise,  or  a  new  devisee, 
why  not  to  strike  out  such  as  are  contained  in  the  executed  will?  The 
■effect  of  such  evidence  in  either  case  would  be,  that  the  will,  though 
made  in  form  by  the  testator  in  his  lifetime,  would  really  be  made  by 
the  attorney  after  his  death ;  that  all  the  guards  intended  to  be  intro- 
duced by  the  Statute  of  Frauds  would  be  entirely  destroyed,  and  the 
statute  itself  virtually  repealed.  And  upon  examination  of  the  decided 
cases  on  which  the  plaintiff  has  relied  in  argument,  no  one  will  be 
found  to  go  the  length  of  supporting  the  proposition  which  he  con- 
tends for;  on  the  contrary,  they  will  all  be  found  consistent  with  the 
■distinction  above  adverted  to, — that  an  uncertainty  which  arises  from 
applying  the  description  contained  in  the  will  either  to  the  thing  de- 
vised or  to  the  person  of  the  devisee,  may  be  helped  by  parol  evidence; 
but  that  a  new  subject-matter  of  devise,  or  a  new  devisee,  where  the 
will  is  entirely  silent  upon  either,  cannot  be  imported  by  parol  evidence 
into  the  will  itself."^ 


THE  LORD  CHEYNEY'S  CASE  (1591). 
5  Co.  Rep.  68a. 

Devise  to  his  son  H.  and  the  heirs  of  his  body,  and  then  to  T.  C. 
and  the  heirs  male  of  his  body,  on  condition  "that  he  or  they  or  any 
of  them"  shall  not  alienate.  Proof  by  witnesses  that  it  was  "the 
^^**  intent  and  meaning  of  the  testators"  to  include  under  "he  or 
they"  his  son  H.,  as  well  as  T.  C,  was  excluded;  "he  should  not  be 
received  to  such  averment  out  of  the  will."  "But  if  a  man  has  two 
sons,  both  baptized  by  the  name  of  John,  and  conceiving  that  the  elder, 

7 — Compare  the  authorities  cited  in  W.,   §  2471. 


No.  594.        D.   INTERPRETATION  OF  LEGAL  ACTS.  673 

who  had  been  long  absent,  is  dead,  devises  his  land  by  his  will  in  writ- 
ing to  his  son  John  generally,  and  in  truth  the  elder  is  living, — in  this 
case  the  younger  son  may  in  pleading  or  in  evidence  allege  the  devise 
to  him,  and  if  it  be  denied,  he  may  produce  witnesses  to  prove  his 
father's  intent,  that  he  thought  the  other  to  be  dead,  or  that  he  at  the 
time  of  the  will  named  his  son  John  the  younger,  and  the  writer  left  out 
the  addition  of  the  younger." 


Sir  Francis  Bacon,  Maxims,  rule  XXV,  circa  1597  (Works,  Sped- 
ding's  ed.,  1861,  vol.  XIV,  p.  273)  :  "There  bel  two  sorts  of  ambiguities 
of  words ;  the  one  is  ambiguitas  patens  and  the  other  is  ambiguitas 
"^*  latens.  Patens  is  that  which  appears  to  be  ambiguous  upon 
the  deed  or  instrument ;  latens  is  that  which  seemeth  certain  and  with- 
out ambiguity  for  anything  that  appeareth  upon  the  deed  or  instrument, 
but  there  is  some  collateral  matter  out  of  the  deed  that  breedeth  the 
ambiguity,  [i]  Ambiguitas  patens  is  never  holpen  by  averment,  and 
the  reason  is,  because  the  law  will  not  couple  and  mingle  matter  of 
specialty,  which  is  of  the  higher  account,  with  matter  of  averment, 
which  is  of  inferior  account  in  law ;  for  that  were  to  make  all  deeds 
hollow  and  subject  to  averment,  and  so,  in  effect,  that  to  pass  without 
deed,  which  the  law  appointeth  shall  not  pass  but  by  deed.  Therefore 
if  a  man  give  land  to  I.  D.  et  I.  S.  hoeredibus,  and  do  not  limit  to 
whether  of  their  heirs;  it  shall  not  be  supplied  by  averment  to  whether 
of  them  the  intention  was  the  inheritance  should  be  limited.  [2] 
But  if  it  be  ambiguitas  latens,  then  otherwise  it  is.  As  I  grant  my 
manor  of  S.  to  I.  F.  and  his  heirs,  here  appeareth  no  ambiguity  at  all 
upon  the  deed;  but  if  the  truth  be  that  I  have  the  manors  both  of 
South  S.  and  North  S.  this  ambiguity  is  matter  in  fact;  and  therefore 
it  shall  be  holpen  by  averment,  whether  of  them  it  was  that  the  parties 
intended  should  pass.  [3]  Another  sort  of  ambiguitas  latens  is  cor- 
relative unto  this:  for  this  ambiguity  spoken  of  before  is,  when  one 
name  and  appellation  doth  denominate  divers  things;  and  the  second 
is,  when  the  same  thing  is  called  by  divers  names.  As  if  I  give  lands 
to  Christ  Church  in  Oxford,  and  the  name  of  the  corporation  is 
Ecclesia  Christie  in  Universitate  Oxford;  this  shall  be  holpen  by  aver- 
ment, because  there  appears  no  ambiguity  in  the  words:  for  the  variance 
is  matter  in  fact.  But  the  averment  shall  not  be  of  the  intention,  be- 
cause it  does  not  stand  with  the  words.  For  in  the  case  of  equivocation 
the  general  intent  includes  both  the  special,  and  therefore  stands  with 
the  words;  but  so  it  is  not  in  variance;  and  therefore  the  averment 
must  be  a  matter  that  doth  induce  a  certainty,  and  not  of  intention; 
as  to  say  that  the  precinct  of  'Oxford'  and  of  'the  University  of  Ox- 
ford' is  one  and  the  same,  and  not  to  say  that  the  intention  of  the 
parties  was  that  the  grant  should  be  to  Christ  Church  in  the  University 
of   Oxford." 


674  PAROL  EVIDENCE  RULE.  No.  595. 

DOE  dem.  GEORGE  GORD  v.  NEEDS  (1836). 
2  M.  &  W.  129. 

Ejectment  for  a  house  and  garden,  claimed  by  the  plaintiff  under  the 
will  of  John  Spark,  which  gave  various  property  to  "John  Gord,"  to 
"John  Gord  the  son  of  George  Gord,"  to  George  Gord  the 
son  of  George  Gord,"  and  then  proceeded:  "Also  I  give  and 
bequeath  unto  Ann  Needs,  until  the  decease  of  George  Needs  and  Jane 
Needs,  the  lower  house  and  garden;  and  after  their  decease  to  George 
Gord,  the  son  of  Gord,  and  his  assigns.  Also  I  give  and  bequeath 
unto  George  Gord,  the  son  of  John  Gord,  the  sum  of  ten  pounds,  and  to 
Jane  and  Elizabeth,  the  two  daughters  of  the  said  John  Gord,  the  sum 
of  five  pounds  each.  Also  I  give  and  bequeath  unto  Mary  Gord,  the 
daughter  of  George  Gord,  the  sum  of  five  pounds,  and  to  George 
Gord  the  son  of  the  said  George  Gord,  the  sum  of  ten  pounds,  and  to 
John  Gord,  one  other  son  of  the  said  George  Gord,  the  sum  of  twenty 
pounds."  The  lessor  of  the  plaintiff,  who  was  the  George  Gord,  the 
son  of  George  Gord,  mentioned  in  the  will,  claimed  the  premises  in 
question  under  the  devise  to  "George  Gord,  the  son  of  Gord,"  and 
offered  evidence  of  declarations  by  the  testator,  showing  that  he,  the 
lessor  of  the  plaintiff,  was  the  intended  devisee  in  remainder  of  the 
"lower  house  and  garden."  It  was  contended  for  the  defendant  that 
this  evidence  was  not  admissible,  but  the  learned  judge  overruled  the 
objection. 

Park,  B.  :  "The  only  point  therefore  remaining  to  be  considered  is 
whether  evidence  was  properly  admitted  of  the  devisor's  declaiations 
to  show  what  person  he  meant  to  designate  by  the  description  of 
'George  Gord,  the  son  of  Gord.'  And  we  are  of  opinion  that  such  evi- 
dence was  properly  admitted. 

"If,  upon  the  face  of  the  devise,  it  had  been  uncertain  whether  the 
devisor  had  selected  a  particular  object  of  his  bounty,  no  evidence 
would  have  been  admissible  to  prove  that  he  intended  a  gift  to  a  cer- 
tain individual ;  such  would  have  been  a  case  of  ambiguitas  patens, 
within  the  meaning  of  Lord  Bacon's  rule  (Maxims,  25),  v/hich  am- 
biguity could  not  be  holpen  by  averment;  for  to  allow  such  evidence 
would  be,  with  respect  to  that  subject,  to  cause  a  parol  will  to  operate 
as  a  written  one;  or,  adopting  the  language  of  Lord  Bacon,  'to  make 
that  pass  without  writing,  which  the  law  appointeth  shall  nr.t  pass  but 
by  writing.'  But  here,  on  the  face  of  the  devise,  no  such  doubt  arises. 
There  is  no  blank  before  the  name  of  Gord  the  father,  which  might 
have  occasioned  a  doubt  whether  the  devisor  had  finally  fixed  en  any 
certain  person  in  his  mind.  The  devisor  has  clearly  selected  a  particu- 
lar individual  as  the  devisee. 

"Let  us  then  consider,  what  would  have  been  the  case,  if  there  had 
been  no  mention  in  the  will  of  any  other  George  Gord,  the  son  of  a 
Gord;    on  that  supposition  there  is  no  doubt,  upon  the  authorities,  but 


No.  596.        D.   INTERPRETATION  OF  LEGAL  ACTS.  675 

that  evidence  of  the  devisor's  intention  as  proved  by  his  declarations, 
would  have  been  admissible.  Upon  the  proof  of  extrinsic  facts,  which 
is  always  allowed  in  order  to  enable  the  Court  to  place  itself  in  the 
situation  of  the  devisor,  and  to  construe  his  will,  it  would  have  ap- 
peared that  there  were  at  the  date  of  the  will  two  persons,  to  each  of 
whom  the  description  would  be  equally  applicable.  This  clearly  re- 
sembles the  case  put  by  Lord  Bacon  of  a  latent  ambiguity,  as  where 
one  grants  his  manor  of  S.  to  J.  F.  and  his  heirs,  and  the  truth  is  thpt 
he  has  the  manors  both  of  North  S.  and  South  S. ;  in  which  case  Lord 
Bacon  says,  'it  shall  be  holden  by  averment,  whether  of  them  was  that 
which  the  party  intended  to  pass.'  The  case  is  also  exactly  like  that 
mentioned  by  Lord  Coke  in  Altham's  Case,  8  Rep.  155  a;  'If  A.  levies 
a  fine  to  William  his  son,  and  A.  has  two  sons  named  William,  the  aver- 
ment that  it  was  his  intent  to  levy  the  fine  to  the  younger  is  good,  and 
stands  well  with  the  words  of  the  fine.'  Another  case  is  put  in  Coun- 
den  v.  Clarke,  Hob.  32,  which  is  in  point, — 'if  one  devise  to  his  son 
John,  where  he  has  two  sons  of  that  name:'  and  the  same  rule  was 
acted  upon  in  the  recent  case  of  Doe  v.  Morgan,  i  C.  &  M.  235.  The 
characteristic  of  all  these  cases  is,  that  the  words  of  the  will  do  describe 
the  object  or  subject  intended;  and  the  evidence  of  the  declarations  of 
the  testator  has  not  the  effect  of  varying  the  instrument  in  any  way 
whatever;  it  only  enables  the  Court  to  reject  one  of  the  subjects,  or 
objects,  to  which  the  description  in  the  will  applies;  and  to  deter- 
mine which  of  the  two  the  devisor  understood  to  be  signified  by  the 
description  which  he  used  in  the  will."^ 


MILLER  v.  TRAVERS   (1832). 
8  Bing.  244. 

The  facts  are  stated  ante,  No.  592. 

TiNDAL,  C.  J. :  "The  cases  to  which  this  construction  (ambiguitas 
verboriim  latens  veriiicationc  supplctur)  applies  will  be  found 
^^  to  range  themselves  into  two  separate  classes.  .  .  .  The  first 
class  is,  where  the  description  of  the  thing  devised,  or  of  the  devisee,  is 
clear  upon  the  face  of  the  will ;  but  upon  the  death  of  the  testator  it  is 
found  that  there  are  more  than  one  estate  or  subject-matter  of  devise, 
or  more  than  one  person  whose  description  follows  out  and  fills  the 
words  used  in  the  will.  As  where  the  testator  devises  his  manor  of 
Dale,  and  at  his  death  it  is  found  that  he  has  two  manors  of  that  name. 
South  Dale  and  North  Dale;  or  where  a  man  devises  to  his  son  John, 
and  he  has  two  sons  of  that  name.  In  each  of  these  cases  respectively 
parol  evidence  is  admissible  to  show  which  manor  was  intended  to 
pass,  and  which  son  was  intended  to  take.  The  other  class  of  cases  is 
that  in  which  the  description  contained  in  the  will  of  the  thing  intended 

1 — Compare  the  authorities  cited  in  W.,  §§  2472,    2473. 


676  PAROL  EVIDENCE  RULE.  No.  596. 

to  be  devised,  or  of  the  person  who  is  intended  to  take,  is  true  in  part, 
but  not  true  in  every  particular.  As  where  an  estate  is  devised  called 
A.,  and  is  described  as  in  the  occupation  of  B.,  and  it  is  found,  that 
though  there  is  an  estate  called  A.,  yet  the  whole  is  not  in  B.'s  occu- 
pation; or  where  an  estate  is  devised  to  a  person  whose  surname  or 
Christian  name  is  mistaken ;  or  whose  description  is  imperfect  or  in- 
accurate; in  which  latter  class  of  cases  parol  evidence  is  admissible  to 
show  what  estate  was  intended  to  pass,  and  who  was  the  devisee  in- 
tended to  take,  provided  there  is  sufficient  indication  of  intention  ap- 
pearing on  the  face  of  the  will  to  justify  the  application  of  the  evi- 
dence." 


DOE  dem.  SIMON  HISCOCKS  v.  JOHN  HISCOCKS    (1839). 
5  M.  &  IV.  363. 

Abinger,  L.  C.  B.  :  "This  was  an  action  of  ejectment,  brought  on  the 
demise  of  Simon  Hiscocks  against  John  Hiscocks.  The  question  turned 
on  the  words  of  a  devise  in  the  will  of  Simon  Hiscocks,  the  grand- 
"^^  father  of  the  lessor  of  the  plaintiff  and  of  the  defendant.  By 
his  will,  Simon  Hiscocks,  after  devising  estates  to  his  son  Simon  for 
life,  and  from  and  after  his  death  to  his  grandson,  Henry  Hiscocks, 
in  tail  male,  and  making,  as  to  certain  other  estates,  an  exactly  similar 
provision  in  favor  of  his  son  John  for  life;  then,  after  his  death,  the 
testator  devises  those  estates  to  'my  grandson,  John  Hiscocks,  eldest 
son  of  the  said  John  Hiscocks.'  It  is  on  this  devise  that  the  question 
wholly  turns.  In  fact,  John  Hiscocks,  the  father,  had  been  twice  mar- 
ried; by  his  first  wife  he  had  Simon,  the  lessor  of  the  plaintiff,  his 
eldest  son;  the  eldest  son  of  the  second  marriage  was  John  Hiscocks, 
the  defendant.  The  devise,  therefore,  does  not,  both  by  name  and 
description,  apply  to  either  the  lessor  of  the  plaintiff,  who  is  the  eldest 
son,  but  whose  name  is  Simon,  nor  to  the  defendant,  who,  though  his 
name  is  John,  is  not  the  eldest  son.  The  cause  was  tried  before  Mr. 
Justice  Bosanquet,  at  the  Spring  Assizes  for  the  County  of  Devon, 
1838,  and  that  learned  judge  admitted  evidence  of  the  instructions  of 
the  testator  for  the  will,  and  of  his  declarations  after  the  will  was 
made,  in  order  to  explain  the  ambiguity  in  the  devise,  arising  from 
this  state  of  facts;  and  the  verdict  having  been  found  for  the  lessor  of 
the  plaintiff,  a  rule  has  been  obtained  for  a  non-suit  or  new  trial,  on  the 
ground  that  such  evidence  of  intention  was  not  receivable  in  this  case. 
And  after  fully  considering  the  question,  which  was  very  well  argued 
on  both  sides,  we  think  that  there  ought  to  be  a  new  trial. 

"The  object  in  all  cases  is  to  discover  the  intention  of  the  testator. 
The  first  and  most  obvious  mode  of  doing  this  is  to  read  his  will  as  he 
has  written  it,  and  collect  his  intention  from  his  words.  But  as  his 
words  refer  to  facts  and  circumstances  respecting  his  property  and  his 
family,  and  others  whom  he  names  or  describes  in  his  will,  it  is  evident 


No.  597.        D.   INTERPRETATION  OF  LEGAL  ACTS.  677 

that  the  meaning  and  application  of  his  words  cannot  be  ascertained, 
without  evidence  of  all  those  facts  and  circumstances.  To  understand 
the  meaning  of  any  writer,  we  must  first  be  apprised  of  the  persons  and 
circumstances  that  are  the  subjects  of  his  allusions  or  statements;  and 
if  these  are  not  fully  disclosed  in  his  work,  we  must  look  for  illustration 
to  the  history  of  thei  times  in  which  he  wrote,  and  to  the  works  of  con- 
temporaneous authors.  All  the  facts  and  circumstances,  therefore,  re- 
specting persons  or  property,  to  which  the  will  relates,  are  undoubtedly 
legitimate,  and  often  necessary  evidence,  to  enable  us  to  understand  the 
meaning  and  application  of  his  words.  Again,  the  testator  may  have 
habitually  called  certain  persons  or  things  by  peculiar  names,  by  which 
they  were  not  commonly  known.  If  these  names  should  occur  in  his 
will,  they  could  only  be  explained  and  construed  by  the  aid  of  evi- 
dence to  show  the  sense  in  which  he  used  them,  in  like  manner  as  if 
his  will  were  written  in  cypher,  or  in  a  foreign  language.  The  habits 
of  the  testator  in  these  particulars  must  be  receivable  as  evidence  to 
explain  the  meaning  of  his  will. 

"But  there  is  another  mode  of  obtaining  the  intention  of  the  testato*", 
which  is  by  evidence  of  his  declarations,  of  the  instructions  given  for 
his  will,  and  other  circumstances  of  the  like  nature,  which  are  not  ad- 
duced for  explaining  the  words  or  meaning  of  the  will,  but  either  to 
supply  some  deficiency,  or  remove  some  obscurity,  or  to  give  some 
effect  to  expressions  that  are  unmeaning  or  ambiguous. 

"Now,  there  is  but  one  case  in  which  it  appears  to  us  that  this  sort  of 
evidence  of  intention  can  properly  be  admitted,  and  that  is,  where  the 
meaning  of  the  testator's  words  is  neither  ambiguous  nor  obscure,  and 
where  the  devise  is  on  the  face  of  it  perfect  and  intelligible,  but,  from 
some  of  the  circumstances  admitted  in  proof,  an  ambiguity  arises,  as  to 
which  of  the  two  or  more  things,  or  which  of  the  two  or  more  persons 
(each  answering  the  words  in  the  will),  the  testator  intended  to  ex- 
press. Thus,  if  a  testator  devise  his  manor  of  S.  to  A.  B.,  and  has  two 
manors,  of  North  S.  and  South  S.,  it  being  clear  he  means  to  devise  one 
only,  whereas  both  are  equally  denoted  by  the  words  he  has  used,  in 
that  case  there  is  what  Lord  Bacon  calls  "an  equivocation,"  /.  c,  the 
words  equally  apply  to  either  manor,  and  evidence  of  previous  inten- 
tion may  be  received  to  solve  this  latent  ambiguity;  for  the  intention 
shows  what  he  meant  to  do;  and  when  you  know  that,  you  immedi- 
ately perceive  that  he  has  done  it  by  the  general  words  he  has  used, 
which,  in  their  ordinary  sense,  may  properly  bear  that  construction. 

"It  appears  to  us  that,  in  all  other  cases  parol  evidence  of  what  was 
the  testator's  intention  ought  to  be  excluded,  upon  this  plain  ground, 
that  his  will  ought  to  be  made  in  writing;  and  if  his  intention  cannot 
be  made  to  appear  by  the  writing,  explained  by  circumstances,  there  is 
no  will.  Where  the  description  is  partly  true  as  to  both  claimants,  and 
no  case  of  equivocation  arises,  what  is  to  be  done  is  to  determine 
whether  the  description   means  the   lessor  of  the  plaintiff  or  the  de- 


678  PAROL  EVIDENCE  RULE.  No.  597. 

fendant.  The  description,  in  fact,  applies  partially  to  each,  and  it  is 
not  easy  to  see  how  the  difficulty  can  be  solved.  If  it  were  res  Integra, 
we  should  be  much  disposed  to  hold  the  devise  void  for  uncertainty; 
but  the  cases  of  Doe  v.  Huthwaite,  3  B.  &  Aid.  632,  Bradshaw  v.  Brad- 
shaw,  and  others,  are  authorities  against  this  conclusion.  If,  therefore, 
by  looking  at  the  surrounding  facts  to  be  found  by  the  jury,  the  Court 
can  clearly  see,  with  the  knowledge  which  arises  from  those  facts  alone, 
that  the  testator  meant  either  the  lessor  of  the  plaintiff  or  the  defendant, 
it  may  so  decide,  and  direct  the  jury  accordingly.  But  we  think  that, 
for  this  purpose,  they  cannot  receive  declarations  of  the  testator  of 
what  he  intended  to  do  in  making  his  will." 


WILLARD  V.  DARRAH   (1902). 
168  Mo.  660,  68  S.  W.  1023. 

Devise  to  "my  well-beloved  nephews  J.  and  W.  W."  The  testator 
had  two  grandnephews  so  named  and  also  two  grandsons  so  named, 
the  latter  being  his  intimates  and  the  former  being  personally 
^^^  unknown  to  him.  Evidence  of  his  repeated  declarations  that  he 
had  bought  this  land  for  them  and  that  he  had  instructed  the  scrivener 
in  their  favor  was  admitted. 

Brace,  P.  J. :  "The  devise  is  *to  my  well-beloved  nephews  John 
and  William  Willard' ;  and  it  is  found  from  the  indirect  parol  evidence 
that  there  are  two  sets  of  brothers,  each  named  John  and  William 
Willard, — the  plaintiff  and  his  brother,  'well-beloved'  grandsons  of  the 
testator,  and  two  grandnephews,  not  'well-beloved'  of  him,  and  having 
no  legal  or  moral  claim  on  his  bounty.  As  to  each  of  these  sets  of 
brothers  the  description  contained  in  the  will  is  partly  correct  and 
partly  incorrect.  It  is  correct  as  to  the  Christian  and  surnames  of 
each  set.  It  is  correct  as  to  neither  in  the  superadded  description  of 
relationship  to  the  testator,  as  the  word  'nephew'  simpliciter,  cannot 
be  held  to  include  grandnephews,  and  the  inapplicability  in  this  case  is 
re-enforced  by  the  word  'beloved'  prefixed  thereto.  So  that  the  descrip- 
tion in  the  will,  when  it  comes  to  be  applied  to  those  only  who  can  pos- 
sibly have  been  intended,  is  just  as  equivocal  in  point  of  fact  as  if  these 
additional  words  of  description  had  been  omitted,  as  in  the  first  case 
supposed.  The  description  of  the  persons  is  partly  correct  and  partly 
incorrect,  leaving  something  equivocal.  The  description  does  not  apply 
precisely  to  either  of  these  two  sets  of  brothers,  but  it  is  morally  and 
legally  certain  that  it  was  intended  to  apply  to  one  or  the  other,  thus 
bringing  the  case  within  the  rule  established  by  the  second  class  of 
cases,  in  which  direct  or  extrinsic  parol  evidence,  including  expressions 
of  intention,  is  admissible.  Such  evidence  was  therefore  admissible  in 
this  case,  in  order  to  solve  a  latent  ambiguity  produced  by  extrinsic  evi- 
dence in  the  application  of  the  terms  of  the  will  to  the  objects  of  the 


No.  599.        D.   INTERPRETATION  OF  LEGAL  ACTS.  679 

testator's  bounty,  to  prevent  the  fourth  clause  of  the  will  from  perish- 
ing, and  obviate  a  partial  intestacy  of  the  testator.  Its  effect  is  not 
to  establish  an  intention  different  in  essence  from  that  expressed  in  the 
will,  but  to  let  in  light  by  which  that  intention,  rendered  obscure  by  out- 
side circumstances,  may  be  more  clearly  discerned,  and  the  will  of  the 
testator,  in  its  entire  scope,  effectuated  according  to  his  true  intent  and 
meaning."^ 


b.    Exception  for  "Falsa  Demonstratio." 

WISEMAN  V.  GREEN  (1900). 
127  N.  C.  288,  S7  S.  E.  272. 

FuRCHES,  J. :  "This  is  an  action  for  possession  of  a  small  piece  of 
land  lying  on  Toe  river,  in  Mitchell  county,  on  which  there  is  an  old 
grist  and  saw  mill,  said  to  contain  two  acres.  .  .  .  The  land  in 
controversy  at  one  time  belonged  to  Alexander  Wiseman,  and 
both  plaintiff  and  defendant  claim  title  under  him.  In  1871  the  sheriff 
of  Mitchell  county,  having  an  execution  in  his  hands  against  Alexander 
Wiseman,  undertook  to  lay  off  his  homestead,  and  to  sell  the  excess 
under  said  execution.  Among  other  lands  sold  by  the  sheriff'  as  such 
■excess,  he  sold  two  acres  of  land  lying  on  the  Toe  river,  'on  which  is 
situated  one  saw  and  grist  mill,  known  as  "A.  Wiseman's  Mill" ;'  and 
the  deed  contains  the  following  calls :  'Beginning  on  the  southeast  bank 
of  Toe  river,  two  rods  below  the  mill  house,  and  runs  west,  north, 
east  and  south,  to  the  beginning,  so  as  to  include  the  mill  and  site 
and  two  acres  of  land,  it  being  and  including  the  land  sold  as  the  ex- 
cess of  the  homestead  of  A.  Wiseman.'  It  appears  from  the  survey 
and  the  evidence  in  the  case  that  the  land  contained  in  the  calls  of  this 
deed  does  not  include  the  saw  mill,  nor  the  grist  mill,  nor  the  mill  site. 
But,  if  the  first  call  'west'  is  reversed,  and  read  'east'  instead  of  "west," 
the  description  in  the  deed,  'begini.ing  on  the  southeast  bank  of  the 
Toe  river,  two  rods  below  the  mill  house,'  will  include  both  the  saw 
and  grist  mill  and  mill  site.  The  plaintiff  claims  that  the  word  'west" 
should  have  been  written  'east,'  and  was  written  'west'  by  mistake, — 
was  an  inadvertence,  a  slip  of  the  pen, — and  should  be  corrected.  The 
defendant  contends  that  there  is  no  mistake,  inadvertence,  or  slip  of 
the  pen  about  it,  and  that  there  is  nothing  to  correct :  that,  instead  of 
its  being  a  correction,  it  would  be  a  change  of  the  deed,  which  the  Court 
has  no  right  to  make.  .  .  .  But  it  seems  to  be  well  settled  that  the 
Court  has  the  right  to  construe  a  deed,  and,  in  proper  cases,  to  correct 
an  inadvertence, — a  'slip  of  the  pen,' — when  it  plainly  appears  from  the 
deed  itself.      .  .  The  sheriff's  deed  under  which  the  plaintiff  claims  'in- 

I — Compare   the   authorities  cited   in    W.,   §  2474. 


680  PAROL  EVIDENCE  RULE.  No.  599. 

eludes  the  saw  and  grist  mill  and  mill  site,'  and  the  deed  must  be  run  so 
as  to  include  them.  The  mill  is  what  is  considered  in  law  a  permanent 
object,  a  natural  boundary  or  location,  and  is  the  most  certain  part  of 
the  description  contained  in  the  deed,  and  controls  the  other  calls  there- 
in. The  beginning  corner  is  certain;  no  mistake  about  that, — two  rods 
below  the  millhouse,  on  the  southeast  bank  of  the  river.  To  begin  at 
that  point  and  run  'west,'  as  the  deed  calls,  and  then  with  the  other 
calls  in  the  deed,  you  entirely  miss  the  mill  house  and  the  mill  site.  But 
to  commence  at  this  known  beginning  corner,  thence  'east,'  and  then 
with  the  other  calls  in  the  deed,  you  include  both  mill  house  and  the 
mill  site.  It  seems  to  us  that  common  sense,  justice,  law,  and  the 
precedents  of  this  Court  sustain  the  ruling  of  the  Court,  and  the  find- 
ing of  the  jury  that  'west'  was  a  mistake,  and  should  have  been  writ- 
ten 'east.'  This  being  so,  the  Court  does  not  change  the  deed,  but  only 
puts  a  legal  construction  upon  it,  which  creates  no  new  rights,  nor  does 
it  affect  the  rights  of  others."^ 


WINKLEY  V.  KAIME   (1855). 
32  N.  H.  268. 

Eastman,  J. :  "The  demandant  declares  for  fort}  acres  of  land, 
more  or  less,  of  lot  No.  97,  in  the  2d  division  in  Barnstead.  The  case 
was  turned  into  an  agreed  one  at  the  trial,  and  we  take  the 
evidence  as  finding  the  facts.  The  first  step  in  the  demandant's 
title  is  a  devise  from  Benjamin  Winkley  to  the  demandant,  of  'thirty- 
six  acres,  more  or  less,  in  lot  37  in  the  2d  division  in  Barnstead,  being 
same  I  purchased  of  John  Peavey.'  It  is  apparent  that  here  is  a 
radical  difference  between  the  description  of  the  premises  demanded 
and  those  contained  in  the  devise ;  the  land  demanded  being  a  part  of  lot 
No.  97,  and  that  bequeathed  being  a  part  of  lot  No.  37.  The  plaintiff 
contends  that  there  is  a  latent  ambiguity  in  the  devise,  and  that  the 
testator  intended  to  bequeath  to  him  the  land  in  lot  97,  as  set  forth  in 
his  declaration,  and  not  37.  To  prove  this,  parol  evidence  was  intro- 
duced on  the  trial,  tending  to  show  that  the  lands  occupied  by  Peavey 

2 — Caton,  C.  J.,  in  Myers,  v.  Ladd,  26  my  residence  was  outside  the  city  limits. 
111.  415,  417  (1861):  "If  I  give  a  bill  So  if  a  deed  describe  lands  by  its  cor- 
of  sale  of  my  black  horses,  and  describe  rect  numbers,  and  further  describe  it  as 
them  as  being  now  in  my  barn,  I  shall  being  situated  in  a  wrong  county,  the 
not  avoid  it  by  showing  that  the  horses  latter  is  rejected.  The  rule  is,  that  where 
were  in  the  pasture  or  on  the  road.  The  there  are  two  descriptions  in  a  deed,  the 
description  of  the  horses  being  sufficient  one,  as  it  were,  superadded  to  the  other, 
to  enable  witnesses  acquainted  with  my  and  one  description  being  complete  and 
stock  to  identify  them,  the  locality  speci-  sufficient  in  itself,  and  the  ather,  which 
fied  would  be  rejected  as  surplusage.  Nor  is  subordinate  and  superadded,  is  incor- 
is  this  rule  confined  to  personal  prop-  rect,  the  incorrect  description,  or  feature 
erty.  It  is  equally  applicable  to  real  or  circumstance  of  the  description,  is  re- 
estate.  If  I  sell  an  estate,  and  describe  jected  as  surplusage,  and  the  complete 
it  as  my  dwelling  house  in  which  I  now  and  correct  description  is  allowed  to  stand 
reside,  situate  in  the  city  of  Ottawa,  I  alone." 
shall   not  avoid   the   deed  by   showing  that 


No.  601.        D.   INTERPRETATION  OF  LEGAL  ACTS.  681 

were  a  part  of  97  in  the  2d  division,  and  that  there  is  no  such  lot  as 
37  in  the  2d  division  in  that  town. 

"There  is  nothing  ambiguous  in  the  terms  of  this  devise,  but  the 
evidence  shows  that,  as  it  stands,  it  cannot  take  effect,  for  there  is 
no  such  lot  as  No.  37  in  the  2d  division.  The  ambiguity  is  latent;  shown 
so  to  be  by  the  evidence;  and  if  that  stands  well  with  the  words  of  the 
will,  it  will  be  competent,  as  showing  the  meaning  and  intention  of  the 
testator.  Without  going  into  any  extended  examination  of  the  ques- 
tion of  latent  ambiguity  at  the  present  time,  it  is  sufficient  for  the  pres- 
ent case  to  say  that  it  appears  to  come  very  properly  under  the  rule  of 
falsa  demontratio  non  nocet;  the  principle  being,  that  if  there  is  a  suffi- 
cient description  of  the  land  devised,  or  of  the  person  of  the  devisee  in- 
tended by  the  testator,  independent  of  the  erroneous  description,  the 
will  will  take  effect.  ...  By  rejecting  the  words  and  figures,  'in  lot 
37,'  in  this  devise,  it  will  stand  thus,  'thirty-six  acres,  more  or  less,  in 
2d  division  in  Barnstead,  being  same  I  purchased  of  John  Peavey.' 
What  the  testator  purchased  of  Peavey  is  shown  to  be  in  the  2d 
division;  is  bounded,  and  answers  in  all  respects  to  the  description 
in  the  devise,  except  the  number  of  the  lot.  The  extrinsic  evidence 
thus  manifestly  shows  what  must  have  been  the  intention  of  the  testa- 
tor, and,  both  upon  the  doctrine  of  the  authorities  and  the  justice  of  the 
case,  we  think  the  devise  should  be  made  to  take  effect." 


KURTZ  V.  HIBNER  (1870). 
55  111-  514- 

Bill  for  petition  by  John  Hibner  and  others,  children  and  heirs  of 
John  Hibner,  deceased,  against  Charles,  Elizabeth  and  James  Kurtz, 
the  latter  claiming  under  a  will  of  John  Hibner.  The  Circuit 
^^•*-  Court  refused  to  hear  parol  evidence,  to  explain  the  language  of 
the  will.  The  relevant  provisions  of  the  will  were  the  following: 
"Third — I  give  and  bequeath  to  my  daughter,  Elizabeth  Kurtz,  all  that 
tract  or  parcel  of  land  situate  in  the  town  of  Joliet,  Will  County,  Illi- 
nois, and  described  as  follows :  The  west  half  of  the  southwest  quarter 
of  section  32,  township  35,  range  10,  containing  eighty  acres,  more  or 
less,  together  with 'all  the  appurtenances  thereunto  belonging,  or  in 
anywise  appertaining."  "Seventh — I  give  and  bequeath  to  my  grandson, 
1  James  Kurtz,  all  that  part  or  parcel  of  land  described  as  the  south  half 
jof  the  east  half  of  the  south  quarter  section  31,  in  township  35,  range 
10,  containing  forty  acres,  more  or  less." 

Appellants   offered  to   prove   that   the  testator,   at   the   time   of  his 

death  owned  only  one  eighty-acre  tract,  in  township  thirty-five,  which 

iwas  the  one  described  in  the  bill;  that  a  mistake  was  made  in  drafting 

jthe  will,  by  the  insertion  of  the  words  "section  thirty-two."  instead  of 

^'section  thirty-three;"  that   Charles  and  Elizabeth   Kurtz  had  been  in 


682  PAROL   EVIDENCE   RULE.  No.  601. 

the  actual  possession  of  the  tract  for  a  number  of  years,  and  upon  the 
repeated  promise  of  the  testator  in  his  lifetime,  that  he  would  give  the 
same  to  Elizabeth,  had  made  lasting  and  valuable  improvements,  at 
their  own  expense,  on  the  land — had  fenced  it,  and  erected  thereon  a 
dwelling-house,  barn  and  corn  cribs,  dug  wells  and  set  out  fruit- 
trees.  Appellants  also  offered  to  prove  that  James  Kurtz,  at  the  time 
of  the  death  of  the  testator,  was  in  the  actual  possession  of  the  forty- 
acre  tract,  as  the  tenant  of  the  deceased,  and  that  the  draughtsman  of 
the  will,  by  mistake,  inserted  the  word  "one,"  after  the  words  "section 
thirty,"  instead  of  "two,"  so  as  to  bequeath  to  James  land  in  section 
thirty-one  instead  of  section  thirty-two.  This  evidence  was  rejected  by 
the  Court,  on  the  hearing. 

Thornton,  J.:  "It  has  been  strongly  urged  by  counsel  for  appel- 
lants, that  this  evidence  should  have  been  received,  for  the  purpose  of 
ascertaining  the  intention  of  the  testator.  The  law  requires  that  all 
wills  of  lands  shall  be  in  writing,  and  extrinsic  evidence  is  never  admis- 
sible, to  alter,  detract  from,  or  add  to,  the  terms  of  a  will.  To  permit 
evidence,  the  effect  of  which  would  be  to  take  from  a  will  plain  and 
unambiguous  language,  and  insert  other  language  in  lieu  thereof,  would 
violate  the  foregoing  well-established  rule.  For  the  purpose  of  de- 
termining the  object  of  a  testator's  bounty,  or  the  subject  of  disposition, 
parol  evidence  may  be  received,  to  enable  the  court  to  identify  the 
person  or  thing  intended.  In  this  regard,  the  evidence  offered  afforded 
no  aid  to  the  Court.  .  .  .  The  thing  devised  is  certain  and  specific. 
Section,  township,  and  range  are  given.  The  evidence  offered,  as  to 
the  mistake  in  the  section,  would  have  made  a  new  and  different  will. 
.  .  .  The  case  of  Riggs  v.  Myers,  20  Mo.  239,  is  also  cited  by  counsel 
for  appellants.  That  case  is  very  different  from  the  one  under  con- 
sideration. The  testator,  in  that  case,  made  a  full  disposition  of  all 
his  estate,  and  then  described  certain  lands,  locating  them  in  a  town- 
ship in  which  he  owned  no  lands.  The  land  intended  to  be  devised, 
was,  however,  identified,  by  reference  to  'the  big  spring'  upon  it.  In 
the  case  before  the  Court  there  is  no  disposition,  either  specifically 
or  generally,  of  the  lands  in  the  bill  mentioned.  We  think,  there- 
fore, there  was  no  error." 


NOTES  UPpN  KURTZ  v.  HIBNER. 
10  American  Law  Register,  New  Series,  p^  {i8yi). 

Isaac  F.  Redfield,  C.  J.  (of  Vermont),  editor  of  the  Register: 
"We  regret  the  necessity  of  dissenting,  so  entirely  as  we  must,  from 
the  argument  and  conclusions  of  the  learned  judge  in  the  fore- 
""^  going  opinion.  .  .  .  The  Court  say,  indeed,  that  the  evidence 
was  offered  by  the  appellants  for  the  purpose  of  showing  that  the 
will  was  by  mistake  drawn  differently  from  what  the  testator  intended. 


No.  602.        D.   INTERPRETATION  OF  LEGAL  ACTS.  683 

That  precise  point  was  immaterial,  and  the  evidence  was  not,  strictly 
speaking,  admissible  for  that  purpose.  That  would  be  to  add  a  new 
term  to  the  will  by  making  it  read,  in  terms,  as  the  testator  would 
have  had  it  made,  if  he  had  recollected  the  numbers  of  the  sections 
in  which  his  lands  lay,  which  can  never  be  done.  .  .  .  But  nothing  is 
more  common,  or  we  might  say  universal,  than  to  receive  oral  proof 
to  show,  that  language  was  used  in  a  peculiar  sense,  or  that  one  term 
was  used  for  another,  or  that  an  essential  term,  to  make  the  definition 
perfect,  was  wholly  omitted,  or  erroneously  stated.  .  .  .  One  rule  upon 
the  subject  is  so  thoroughly  established  as  to  have  become  a  maxim 
in  the  law,  falsa  demonstratio  non  nocet.  The  practical  meaning  of 
this  maxim  is,  that  however  many  errors  there  may  be  in  the  descrip- 
tion, either  of  the  legatee  or  of  the  subject-matter  of  the  devise,  it 
will  not  avoid  the  bequest,  provided  enough  remains  to  show,  with 
reasonable  certainty,  what  was  intended.  ...  In  the  principal  case, 
there  could  be  no  question  of  the  admission  of  oral  evidence  to  show 
the  state  and  extent  of  the  testator's  property,  in  order  to  place  the 
court  in  the  same  position  the  testator  was  at  the  time  he  made  the 
will.  No  reasonable  man  could  question  this  upon  the  decided  cases. 
This  being  done,  it  appears  the  testator  had  no  such  land  as  that 
described,  in  the  particular  sections  named.  This  rendered  it  clear, 
absolutely  certain,  we  may  say,  that  the  sections  named  were  erroneous 
and  could  have  no  possible  operation,  and  must  be  rejected.  The  de- 
vise then  was  the  same  as  if  the  sections  had  not  been  named  at  all, 
or  had  been  named,  leaving  the  numbers  blank.  We  are  then  com- 
pelled to  fall  back  upon  the  remaining  portion  of  the  description, 
'eighty  acres  of  land  in  range  ten,  in  township  thirty-five,'  and  'forty 
acres  of  land  in  range  ten,  in  township  thirty-five;'  and,  upon  inquiry, 
we  find  precisely  such  pieces  of  land  in  'range  ten,  in  township  thirty- 
five,'  belonging  to  the  testator.  This  renders  the  devise  as  certain  as 
it  is  possible  to  make  it.  .  .  .  We  trust  we  have  not  failed  to  express 
our  views  in  regard  to  the  foregoing  case  with  all  that  moderation 
and  respect  which  is  due  to  the  decision  of  so  learned  and  able  a 
court,  and  which  we  most  sincerely  feel.  But  that  the  decision  is 
fatally  and  flagrantly  erroneous  there  can  be  no  more  question  or 
doubt  than  of  the  axioms  of  geometry  or  the  propositions  in  the  most 
exact  sciences." 

John  D.  Caton,  J.  (of  Illinois),  ih.  p.  S53'  "I  have  perused  with 
some  care  and  much  interest  the  reports  of  the  case  of  Kurtz  v.  Hib- 
ner  et  al.,  ante,  p.  93,  and  the  editorial  note  appended,  in  which  the 
learned  editor  feels  compelled  to  dissent  from  the  conclusions  of  the 
court,  as  announced  in  the  opinion  of  Mr.  Justice  Thornton.  The 
principle  involved  is  of  the  highest  importance,  and  is  worthy  of  the 
most  careful  consideration  of  the  profession.  From  the  best  considera- 
tion which  I  have  been  able  to  give  the  subject.  I  am  constrained  to 
the  conclusion  that  the  decision  of  the  Court  is  right,  and  that  the 
editor   has   fallen   into   an   error.     The   great   learning   and   deservedly 


684  .  PAROL    EVIDEiNCE    Kui.^.  Xo.  602. 

high  reputation  of  the  editor  who  wrote  that  note,  and  the  profound 
respect  I  have  ever  entertained  for  him  as  an  eminent  jurist,  whose 
labors  have  done  much  to  advance  the  science  of  the  law,  have  caused 
me  to  hesitate  long  before  allowing  myself  to  disagree  with  him. 

"The  fundamental  error  of  the  editor,  in  my  apprehension,  con- 
sists in  his  assuming  that  necessarily  the  testator  designed  to  devise 
land  to  which  he  had  a  present  existing  title.  To  maintain  this  as- 
sumption we  must  find  that  the  Court,  as  a  matter  of  law,  must  declare 
that  it  was  impossible  for  the  testator  to  intend  to  devise  property  to 
which  he  had  not  a  present  title,  when  there  is  no  expression  in  the 
will  intimating  such  a  purpose.  I  have  met  with  no  case,  and  cer- 
tainly none  that  has  been  cited  in  the  editorial  note,  in  which  such  a 
doctrine  is  intimated.  While  in  the  particular  case  we  may  admit 
that  this  is  most  probably  true,  we  must  also  admit  that  it  is  not  neces- 
sarily so,  and  the  Court  had  no  warrant  for  saying,  as  matter  of  law, 
or  as  a  necessary  legal  conclusion,  that  such  was  the  case;  and  hence 
it  had  no  right  to  act  upon  such  a  conclusion.  We  may  suppose  a 
thousand  cases  in  which  the  testator  would  devise  a  particular  piece 
of  land  to  which  he  at  the  time  had  no  title.  It  is  sufficient  to  sug- 
gest the  case  of  an  honest  mistake  as  to  the  ownership,  or  of  a 
contemplated  purchase.  At  any  rate,  he  had  a  right  to  do  so,  and  so 
it  has  no  doubt  been  done  by  ten  thousand  before  him  through  mis- 
apprehension or  even  caprice.  The  devise  in  this  will  is  of  'the  west 
half  of  the  south-west  quarter,  section  32,  township  35,  range  10,  con- 
taining 80  acres,  more  or  less.'  Here  then  we  have  the  range,  the 
township,  the  section,  the  quarter  section,  and  the  half-quarter  section 
set  down,  and  nothing  more.  The  description  is  complete  and  definite, 
but  we  find  nowhere  a  single  word  of  additional  description.  We  find  no 
attempt  to  duplicate  the  description  as  'my'  land,  or  'in  the  possession  of 
A.  B.,'  or  'on  which  is  the  Big  Spring,'  or  'my  land  on  the  Bluff', 
nor  any  other  single  word  on  which  the  Court  may  seize  to  enable 
it,  with  the  aid  of  parol  proof,  to  say  that  thirty-two  was  a  false  de- 
scription, and  so  reject  it,  and  still  determine  from  the  words  of  the 
will  that  section  thirty-three  was  in  truth  meant.  Strike  the  word 
'thirty-two'  from  this  description  and  the  whole  is  left  entirely  unin- 
telligible, for  there  is  nothing  else  in  the  will  to  supply  its  place. 

"I  entirely  agree  with  the  learned  editor,  in  his  definition  of  the 
maxim  falsa  demonstratio  non  nocet.  He  says,  'The  practical  mean- 
ing of  this  maxim  is,  that  however  many  errors  there  may  be  in  the 
description,  either  of  the  legatee  or  of  the  subject-matter  of  the  de- 
vise, it  will  not  avoid  the  bequest,  provided  enough  remains  to  show, 
with  reasonable  certainty,  rvlmt  was  intended.'  I  have  emphasized 
the  latter  part  of  this  definition  because  I  think  it  an  important,  nay, 
an  indispensable  part  of  it,  and  which,  in  its  application  to  the  prin- 
cipal case,  was  quite  overlooked  in  the  note.  If  we  reject  the  false 
description,  which  is  in  the  number  of  the  section,  and  so  leave  that 
a  blank  as  the  editor  in  fact  does,  leaving  only  a  specified  eighty-acre 


No.   602.  D.      INTERPRETATION  OF  LEGAL  ACTS.  685 

tract  in  an  unspecified  section  in  a  given  township,  we  have  a  de- 
scription which  appHes  alike  to  no  less  than  36  different  lots,  so  far 
as  the  description  goes,  and  nothing  'remains  in  the  will  to  show  with 
reasonable  certainty'  which  of  the  36  tracts  was  intended.  .  .  . 

"If  in  this  case  the  word  my  had  been  used  instead  of  the  in  con- 
nection with,  or  rather  in  duplication  of  the  description,  then  indeed 
there  would  have  been  something  in  the  will  to  construe,  and  by  the 
aid  of  parol  proof  the  Court  might  ascertain  what  the  testator  meant 
when  he  used  it — then  there  would  have  been  an  additional  descrip- 
tion by  which  the  Court  might  have  determined  the  subject  of  the 
devise,  after  having  eliminated  thirty-two.  I  repeat,  without  some 
sort  of  additional  description  in  the  will,  the  Court  had  no  right  to 
destroy  the  description,  which  is  clear,  precise,  and  single,  and  insert 
an  additional  description  of  its  own,  and  then  go  on  and  construe  it. 
It  is  impossible  to  say  that  there  is  a  false  description  where  there 
is  but  one  description  which,  as  in  this  case,  is  plain  and  perfect, 
without  an  additional  reference  or  word  by  which  the  Court  might  be 
enabled  to  determine  what  land  was  in  the  mind  of  the  testator  when 
he  wrote  or  dictated  the  description  proposed  to  be  eliminated  from 
the  will.  The  central  idea  on  which  this  doctrine  of  falsa,  &c.,  turns 
is,  that  there  must  be  two  descriptions  of  some  sort,  which  facts 
aliunde,  if  need  be,  show  are  inconsistent  with  each  other,  and  enable 
the  Court  to  say  satisfactorily  which  is  the  true  and  which  is  the  false 
description,  when  it  will  discard  the  false  and  give  effect  to  the  true, 
as  if  the  false  description  had  never  been  written.  .  .  .  The  legal 
acumen  for  which  the  editor,  with  whom  I  feel  compelled  though  re- 
luctantly to  disagree,  is  so  justly  celebrated,  will,  I  am  satisfied,  upon 
more  mature  reflection,  convince  him  that  he  has  for  once,  at  least, 
fallen  into  an  error;  and  his  well-known  candor,  I  am  sure,  must 
make  him  anxious,  that  if  such  be  the  case,  it  should  be  pointed  out 
in  a  courteous  and  proper  way."^ 

I — Compare  the  authorities  cited  in  W.,  §  2477. 


686  BCMDK  II.  No.  604. 


BOOK   II. 

BY  WHOM  EVIDENCE  MUST   BE   PRESENTED. 

(BURDEN  OF  PROOF,  AND  PRESUMPTIONS). ^ 

I.  KINDS  OF  BURDEN  AND  PRESUMPTION. 

^Burden  of  Proof;  (i)  First  Meaning;  Risk  of  Non-Persua- 
sion OF  THE  Jury.  "Since  the  parties  have  the  risk  and  burden  of 
producing  evidence  left  upon  themselves,  how^  is  it  to  be  ap- 
portioned  between  them?  In  short,  which  party  has  the  'burden 
of  proof  f 

"In  every  attempt  to  explain  the  principles  of  the  \aM  as  to  burden 
of  proof  and  presumption,  two  things  at  least  present  themselves  for 
consideration, — the  general  process,  logical  and  legal,  involved  in  de- 
termining the  parties  by  whom  evidence  is  to  be  produced,  and  the 
significance  and  usage  of  various  terms  employed  and  the  incidental 
problems  of  each  part  of  the  process.  The  difficulties  of  such  an  at- 
tempt, almost  insuperable,  exist  not  so  much  from  the  intrinsic  com- 
plication or  uncertainty  of  the  situation  as  from  the  lamentable  am- 
biguity of  phrase  and  confusion  of  terminology  under  which  our  law 
has  so  long  sufifered.  At  the  outset,  then,  it  will  be  more  satisfactory 
to  analyze  the  logical  and  legal  situation  considered  in  itself  and  in- 
dependently of  the  various  usages  and  terms  that  chiefly  cause  the 
confusion. 

"(i)  Burden  of  Proof;  Risk  of  Non-persuasion.  Whenever  A  and 
B  are  at  issue  upon  any  subject  of  controversy  (not  necessarily  legal), 
and  M  is  to  take  action  between  them,  and  their  desire  is,  hence,  re- 
spectively to  persuade  M  as  to  their  contention,  it  is  clear  that  the 
situation  of  the  two,  as  regards  its  advantages  and  risks,  will  be  very 
dififerent.  Suppose  that  A  has  property  in  which  he  would  like  to 
have  M  invest  money,  and  that  B  is  opposed  to  having  M  invest 
money;  M  will  invest  in  A's  property  if  he  can  learn  that  it  is  a 
profitable  object,  and  not  otherwise.  Here  it  is  seen  that  the  advan- 
tage is  with  B,  and  the  disadvantage  with  A;    for  unless  A  succeeds 

I — A  chief  difficulty  in  the  study  of  this  intended    to    be    used    as    studies    in    the 

subject   is   to   learn   to    detect    the   different  different     forms     of     judicial     expression — 

processes   to    which    the   terms    "burden   of  the  obscure  and   misleading  as  well  as  the 

proof"    and    "presumption"    are    applied   so  precise    ones;    then    follow    (under    II)    il- 

ambiguously      in      the      opinions      of     the  lustrations  of  specific  presumptions  in  com- 

Courts.     Hence,  in  the  materials  here  col-  mon   use. 

lected,    the   cases    placed   immediately   after  2 — Quoted    from    W.,    §§  2485,    2486. 
the  introductory  explanations  of  terms  are 


No.  604.  THEORY  AND  DEFINITIONS.  687 

in  persuading  M  up  to  the  point  of  action,  A  will  fail  and  B  will 
remain  victorious;  the  burden  of  proof,  or,  in  other  words,  the  risk 
of  non-persuasion,  is  upon  A.  This  does  not  mean  that  B  is  abso- 
lutely safe  though  he  does  nothing  for  he  cannot  tell  how  much  it 
will  require  to  persuade  M ;  a  very  little  argument  from  A  might 
suffice;  or,  if  M  is  of  a  rashly  speculative  tendency,  the  mere  men- 
tion of  the  proposition  by  A  might  without  more  affect  M's  action ; 
so  that  it  may  be  safer  in  any  case  for  B  to  say  what  he  can  on  his 
side  of  the  question ;  and  thus  in  fact  he,  as  well  as  A,  has  more  or 
less  risk,  in  the  sense  that  there  are  always  chances  of  A's  persuading 
M,  no  matter  how  trifling  his  evidence  and  argument.  But  neverthe- 
less the  risk  is  really  upon  A,  in  the  sense  that  if  M,  after  all  said 
and  done,  remains  in  doubt,  and  therefore  fails  to  pass  to  the  point 
of  action,  it  is  A  that  loses  and  B  that  succeeds;  because  it  is  A 
who  wishes  the  action  taken  and  needed  as  a  prerequisite  to  accom- 
plish the  persuasion  of  M.  The  risk  of  non-persuasion,  therefore,  i.  e. 
the  risk  of  M's  non-action  because  of  doubt,  may  properly  be  said  to 
be  upon  A.  This  is  the  situation  common  to  all  cases  of  attempted 
persuasion,  whether  in  the  market,  the  home,  or  the  forum.  So  far  as 
mere  log^c  is  concerned,  it  is  perhaps  questionable  whether  there  is 
much  importance  in  the  doctrine  of  burden  of  proof  as  affecting  per- 
sons in  controversy.  The  removal  of  the  burden  is  not  in  itself  a 
matter  of  logical  necessity.  It  is  the  desire  to  have  action  taken  that 
is  important.^  In  the  affairs  of  life  there  is  a  penalty  for  not  sus- 
taining the  burden  of  proof, — i.  e.  not  persuading  M  beyond  the  doubt- 
ing point, — namely,  that  M  will  not  take  the  desired  action,  to  which 
his  persuasion  is  a  prerequisite. 

"Thus,  in  practical  affairs  generally,  the  burden  of  proof  (in  the 
sense  of  risk  of  non-persuasion)  signifies  that  upon  a  person  desiring 
action  from  M  will  fall  the  penalty  of  M's  non-action  unless  M  can 
be  persuaded  beyond  the  doubting-point  as  to  the  truth  of  the  proposi- 
tions prerequisite  to  his  action.  What,  then,  is  the  difference,  if  any, 
between  this  risk  of  non-persuasion  in  affairs  at  large  and  the  same 
risk  in  litigation?  In  litigation,  the  penalty  is  of  course  different; 
the  action  which  is  desired  of  M  is  the  verdict  of  the  jury,  the  de- 
cree, order,  or  finding  of  the  judge,  or  some  other  appropriate  action 
of  the  tribunal.  But  so  also  the  action  differs  in  other  affairs,  accord- 
ing as  M  is  an  investor  with  money  to  lend,  or  an  employer  with  a 
position  to  fill,  or  a  friend  with  a  favor  to  grant.     Is  there  no  other 

3 — "In  Logic,  then,  when  we  speak  of  no  'obligation'  on  any  one  to  prove  an 
the  burden  of  proof,  we  are  not  speak-  assertion, — other  than  any  wish  he  may 
inir  of  some  merely  artificial  law,  with  ar-  feel  to  set  an  inquiring  mind  at  rest  or 
tificial  penalties  attached  to  it.  .  .  .  No  to  avoid  the  imputation  of  empty  boast- 
penalty  follows  the  misplacement  of  the  ing.  It  is  a  natural  law  alone  with  which 
burden  of  proof,  except  the  natural  con-  we  arc  here  concerned, — the  law  that  an 
sequence  that  the  assertion  remains  un-  unsupported  assertion  may,  for  all  that 
tested,  and  the  audience  therefore  (if  appears,  be  either  true  or  false."  (Pro- 
inquiring)     unconvinced.     .     .     .     There    is  fessor    Alfred     Sidgwick,     Fallacies,     163.) 


688  BURDEN    OF    PROOF,    AND    PRESUMPTIONS.  No.   604. 

and  more  radical  difference?  The  radical  difference  in  litigation,  as 
distinguished  from  practical  affairs  at  large,  is  as  to  the  mode  of  de- 
termining the  propositions  of  persuasion  which  are  a  prerequisite  to 
M's  action.  In  affairs  at  large,  these  are  determined  solely  by  M's 
notion  of  the  proper  grounds  for  his  action, — depending  thus  on  the 
circumstances  of  the  situation  as  judged  by  M.  In  litigation,  these 
prerequisites  are  determined,  first  and  broadly,  by  the  substantive  law, 
which  fixes  the  groups  of  data  that  enter  into  legal  relations  and  con- 
stitute rights  and  duties,  and,  secondly  more  and  more  in  detail,  by  the 
laws  of  pleading  and  procedure,  which  further  group  and  subdivide 
these  larger  groups  of  data,  and  assign  one  or  another  sub-group  to 
this  or  that  party  as  prerequisites  of  the  tribunal's  action  in  his  favor. 
Thus,  if  A  were  endeavoring  to  persuade  M  to  assist  him  with  money 
because  M's  brother  B  had  cruelly  assaulted  and  beaten  A,  M  might 
conceivably  exact  of  A  that  the  latter  first  prove  to  him — i.  e.  persuade 
him — not  merely  that  B  had  beaten  A,  but  further  that  B  had  not 
done  this  in  self-defence  or  by  A's  consent  or  in  ejecting  A  from  B's 
premises  or  otherwise  for  some  reason,  legally  justifiable  or  not.  In 
a  legal  tribunal,  on  the  other  hand,  the  substantive  law  will  define 
and  limit,  in  the  first  place,  the  reasons  to  be  regarded  as  justifiable, 
and  will  thus  narrow  the  total  of  facts  that  can  in  any  event  be  in- 
volved ;  and,  in  the  second  place,  the  law  of  pleading  will  further 
subdivide  and  apportion  these  facts.  It  will  inform  A  that  he  need 
persuade  the  tribunal  of  two  facts  only,  namely,  that  A  was  beaten 
and  it  was  B  who  beat  him ;  and  that,  upon  persuading  the  tribunal 
of  these  facts,  its  action  will  be  taken  in  his  favor,  and  A's  risk  of  the 
tribunal's  non-action  will  thereupon  cease.  It  will  inform  B  that  at 
this  point  the  risk  of  non-action  will  turn  upon  him,  in  the  sense  that 
he  needs  the  tribunal's  action  in  order  to  relieve  himself  from  the 
consequences  of  its  previous  action,  and  that  this  action  (by  way  of 
reversing  its  provisional  action  in  A's  favor)  will  depend  upon  his 
persuading  the  tribunal  as  to  certain  specified  facts  by  way  of  excuse 
or  justification.  Perhaps  the  same  law  of  pleading  may  further  ap- 
portion to  A  a  third  set  of  facts  to  be  the  subject  of  a  replication,  in 
case  B  succeeds  in  obtaining  action  in  his  favor  on  his  plea. 

"But  the  groupings  defined  by  the  substantive  law  and  the  further 
subdivision  by  the  law  of  pleading  do  not  necessarily  end  the  process 
of  apportionment  by  law.  Even  within  a  single  pleading  there  are  in- 
stances in  which  the  burden  of  proof  (in  the  sense  of  a  risk  of  non- 
persuasion)  may  be  taken  from  the  pleader  desiring  action  and  placed 
upon  the  opponent.  In  criminal  cases,  for  example,  though  there  is 
no  affirmative  pleading  for  the  defence,  it  is  put  upon  the  defendant, 
in  some  jurisdictions,  to  prove  the  excuse  of  self-defence ;  in  many 
jurisdictions  in  which  payment  need  not  be  affirmatively  pleaded  to  a 
contract-claim,  the  burden  of  proving  payment  is  nevertheless  put  upon 
the  debtor;  and  so  in  many  other  instances.  The  difference  of  effect 
between    an   apportionment   under   this   method   and   an    apportionment 


No.   604.  THEORY  AND  DEFINITIONS.  689 

by  requiring  a  pleading  is  merely  that,  in  the  latter  method,  all  ques- 
tions of  burden  of  proof  might  conceivably  be  disposed  of  before  trial 
or  the  entering  into  evidence;  while  by  the  other  method  the  appor- 
tionment is  not  made  until  the  trial  proper  has  begun.  The  other 
method  is  less  simple  in  the  handling;  but  it  has  come  into  more 
vogue  under  the  loose  modes  of  pleading  current  in  modern  times  in 
many  jurisdictions. 

"Test  for  this  Burden;  Negative  and  Affirmative  Allega- 
tions; Facts  peculiarly  within  a  Party's  Knowledge.  The  char- 
acteristic, then,  of  the  burden  of  proof  (in  the  sense  of  a  risk  of  non- 
persuasion)  in  legal  controversies  is  that  the  law  divides  the  process 
into  stages  and  apportions  definitely  to  each  party  the  specific  facts 
which  will  in  turn  fall  to  him  as  the  prerequisites  of  obtaining  action 
in  his  favor  by  the  tribunal.  It  is  this  apportionment  which  forms 
the  important  element  of  controversy  for  legal  purposes.  Each  party 
wishes  to  know  of  what  facts  he  has  the  risk  of  non-persuasion.  By 
what  considerations,  then,  is  this  apportionment  determined?  Is  there 
any  single  principle  or  rule  which  will  solve  all  cases  and  afford  a  gen- 
eral test  for  ascertaining  the  incidence  of  this  risk?  By  no  means. 
It  is  often  said  that  the  burden  is  upon  the  party  having  the  afRrma- 
tive  allegation.  But  this  is  not  an  invariable  test,  nor  even  always 
a  significant  circumstance ;  the  burden  is  often  on  one  who  has  a 
negative  assertion  to  prove ;  a  common  instance  is  that  of  a  promisee 
alleging  non-performance  of  a  contract.  It  is  sometimes  said  that  it 
is  upon  the  party  to  whose  case  the  fact  is  essential.  This  is  correct 
enough,  but  it  merely  advances  the  inquiry  one  step ;  we  must  then 
ask  whether  there  is  any  general  principle  which  determines  to  what 
party's  case   a   fact   is   essential. 

"The  truth  is  that  there  is  not  and  cannot  be  any  one  general 
solvent  for  all  cases.  It  is  merely  a  question  of  policy  and  fairness 
based  on  experience  in  the  different  situations.  Thus,  in  most  actions 
of  tort  there  are  many  possible  justifying  circumstances, — self-defence, 
leave  and  license,  volenti  non  fit  injuria,  and  the  like;  but  it  would 
be  both  contrary  to  experience  and  unfair  to  assume  that  one  of  them 
was  probably  present,  and  to  require  the  plaintiff  to  disprove  the  ex- 
istence of  each  one  of  them;  so  that  the  plaintiff  is  put  to  prove 
merely  the  nature  of  his  harm,  and  the  defendant's  share  in  causing  it ; 
and  the  other  circumstances,  which  would  if  they  existed  leave  him 
without  a  claim,  are  put  upon  the  defendant  to  prove.  Nevertheless, 
in  malicious  prosecution,  on  the  one  hand,  the  facts  as  to  the  de- 
fendant's good  faith  and  probable  cause,  which  might  otherwise  have 
been  set  down  for  the  defendant  to  show  in  excuse  (as  the  analogous 
facts  in  an  action  for  defamation  are  reserved  for  a  plea  of  privilege), 
are  here  put  upon  the  plaintiff,  who  is  required  to  prove  their  non- 
existence; because  as  a  matter  of  experience  and  fairness  this  seems 
to  be  the  wiser  apportionment.  So,  on  the  other  hand,  in  an  action 
for  defamation   ('false  words.'  in  the  old  nomenclature),  it  might  have 


690 


BURDEN    OF    PROOF,    AND    PRESUMPTIONS. 


No.  604. 


been  supposed  on  other  analogies  that  to  the  plaintiff  it  would  fall  to 
prove  the  falsity  of  the  defendant's  utterance ;  yet  as  a  matter  of 
fairness,  it  has  in  fact  been  put  upon  the  defendant  to  prove  the  truth 
of  his  utterance.  Thus,  no  one  principle  will  serve  in  torts  as  a  guid- 
ing rule  for  the  various  cases.  In  criminal  cases,  the  innovation,  in 
some  jurisdictions,  of  putting  upon  the  accused  the  burden  of  proving 
his  insanity  has  apparently  also  been  based  on  an  experience  in  the 
abuses  of  the  contrary  practice.  In  claims  based  on  written  instru- 
ments, experience  has  led  in  most  jurisdictions  to  a  statutory  pro- 
vision, requiring  the  execution  by  the  defendant  to  be  specially  trav- 
ersed or  else  taken  for  admitted, — a  step  which  stops  short  of  changing 
the  burden  of  proof,  but  well  illustrates  the  considerations  affecting  its 
incidence.  The  controversy  whether  a  plaintiff  in  tort  should  be  re- 
quired to  prove  his  own  carefulness,  or  the  defendant  should  be 
required  to  prove  the  plaintiff's  carelessness,  has  depended  in  part  on 
experience  as  to  a  plaintiff  being  commonly  careful  or  careless,  in  part 
on  the  fairness  of  putting  the  burden  on  one  or  the  other,  and  this  in 
part  on  the  consideration  which  of  the  parties  has  the  means  of  proof 
more  available. 

"This  last  consideration  has  often  been  advanced  as  a  special  test 
for  solving  a  limited  class  of  cases,  i.  e.  the  burden  of  proving  a  fact 
is  said  to  be  put  on  the  party  who  presumably  has  peculiar  knozuledge 
enabling  him  to  prove  its  falsity  if  it  is  false.  But  this  consideration 
furnishes  no  working  rule;  if  it  did,  then  the  plaintiff  in  an  action 
for  defamation  charging  him  to  be  living  in  adultery  should  be  re- 
quired to  prove  that  he  is  lawfully  married.  This  consideration,  after 
all,  merely  takes  its  place  among  other  considerations  of  fairness  and 
experience  as  one  to  be  kept  in  mind  in  apportioning  the  burden  of 
proof  in  a  specific  case. 

"There  is,  then,  no  one  principle,  or  set  of  harmonious  principles, 
which  afford  a  sure  and  universal  test  for  the  solution  of  a  given  case. 
The  logic  of  the  situation  does  not  demand  such  a  test;  it  would  be 
useless  to  attempt  to  discover  or  to  invent  one;  and  the  state  of  the 
law  does  not  justify  us  in  saying  that  it  has  accepted  any.  There  are 
merely  specific  rules  for  specific  cases,  resting  for  their  ultimate 
reasons  upon  broad  and  undefined  reasons  of  experience  and  fairness." 


^Burden  of  Proof;  (2)  Second  Meaning;  Duty  of  Producing 
Evidence  to  the  Judge.  "So  far  as  concerns  the  principles  explained 
above,  the  matter  may  have  come  before  any  kind  of  tribunal. 
605  'pj^g  inquiry  peculiarly  concerns  the  procedure  in  legal  con- 
troversies ;  but  the  settlement  of  it  is  not  affected  by  the  nature  of 
the  tribunal.     The  tribunal  might  be  a  judge,  or  a  jury,  or  both,  so 

I — Quoted    from    W.,    §  2487-2490. 


No.  605,  THEORY  AND  DEFINITIONS.  691 

far  as  regards  apportioning  the  risk  of  non-persuasion.  Nothing  has 
been  said,  or  need  be,  about  a  distinction  between  judge  and  jury. 
But  we  come  now  to  a  pecuHar  set  of  rules  which  have  their  source 
in  the  bipartite  constitution  of  the  common-law  tribunal.  Apart  from 
the  distinction  of  functions  between  judge  and  jury,  these  rules  need 
have  had  no  existence.  They  owe  their  existence  chiefly  to  the  his- 
toric and  unquestioned  control  of  the  judge  over  the  jury,  and  to  the 
partial  and  dependent  position  of  the  jury  as  a  member  of  the  tribunal 
whose  functions  come  into  play  only  within  certain  limits.  The  treat- 
ment of  the  situation,  and  the  operation  of  the  rules,  can  best  be  com- 
prehended by  keeping  this  consideration  in  mind,  namely,  that  the 
opportunity  to  decide  finally  upon  the  evidential  material  that  may  he 
offered  does  not  go  to  the  jury  as  a  matter  of  course;  that  each  party 
must  first  with  his  evidence  pass  the  gauntlet  of  the  judge;  and  that 
the  judge,  as  a  part  of  his  function  in  administering  the  law,  is  to 
keep  the  jury  within  the  bounds  of  reasonable  action.  In  short,  in 
order  to  get  to  the  jury  on  the  issue,  and  bring  into  play  the  burden 
of  proof  (in  the  sense  of  the  risk  of  non-persuasion  of  the  jury),  both 
parties  alike  must  first  satisfy  the  judge  that  they  have  a  quantity  of 
evidence  fit  to  he  considered  by  the  jury,  and  to  form  a  reasonable 
basis  for  the  verdict.  This  duty  of  satisfying  the  judge  is  peculiar  in 
its  operation,  because  if  it  is  not  fulfilled,  the  party  in  default  loses, 
by  order  of  the  judge,  and  the  jury  is  not  given  an  opportunity  to 
debate  and  form  conclusions  as  if  the  issue  were  open  to  them.  It 
operates  somewhat  as  follows: 

"(a)  The  party  having  the  risk  of  non-persuasion  (under  the 
pleadings  or  other  rules)  is  naturally  the  one  upon  whom  first  falls 
this  duty  of  going  forward  with  evidence ;  because,  since  he  wishes  to 
have  the  jury  act  for  him,  and  since  without  any  legal  evidence  at 
all  they  could  properly  take  no  action,  there  is  no  need  for  the  op- 
ponent to  adduce  evidence;  and  this  duty  thus  falls  first  upon  the 
proponent  (a  term  convenient  for  designating  the  party  having  the 
risk  of  non-persuasion).  This  duty,  however,  though  determined  in 
the  first  instance  by  the  burden  of  proof  in  the  sense  of  the  risk  of 
non-persuasion,  is  a  distinct  one,  for  it  is  a  duty  tozvards  the  judge, 
and  the  judge  rules  against  the  party  if  it  is  not  satisfied;  there  is  as 
yet  no  opportunity  to  get  to  the  jury  and  ask  if  they  are  persuaded. 
The  judge,  then,  requires  that  at  least  enough  evidence  be  put  in  to 
be  worth  considering  by  the  jury. 

"(6)  Suppose,  then,  that  the  proponent  has  satisfied  this  duty 
towards  the  judge,  and  that  the  judge  has  ruled  that  sufficient  evidence 
has  been  introduced.  The  duty  has  then  ended.  Up  to  that  point  the 
proponent  was  liable  to  a  ruling  of  law  from  the  judge  which  would 
put  an  end  to  his  case.  After  passing  this  point  he  is  now  before  the 
jury,  bearing  his  risk  of  non-persuasion.  There  is  now  no  duty  on 
either  party,  with  reference  to  any  rule  of  law  in  the  hands  of  the 
judge,  to  produce  evidence.     Either  party  may  introduce  it,  and  doubt- 


692  BURDEN    OF   PROOF,   AND   PRESUMPTIONS.  No.  605. 

less  both  parties  will  do  so ;  but  there  is  nothing  that  requires  either 
to  do  so  under  penalty  of  a  ruling  of  law  against  him.  The  pro- 
ponent, however,  still  has  his  burden  of  proof  in  the  sense  of  the  risk 
of  non-persuasion  of  the  jury;  i.  e.  should  the  jury  be  in  doubt  after 
hearing  the  evidence  of  the  proponent,  either  with  or  without  evidence 
from  the  opponent,  the  proponent  fails  to  obtain  their  verdict  upon 
that  issue,  and  the  opponent  remains  successful.  In  this  second  stage 
of  the  trial,  with  the  evidence  before  the  jury,  the  only  burden  oper- 
ating is  that  which  concerns  the  jury, — the  risk  of  non-persuasion; 
and  not  that  which  concerns  the  judge, — the  duty  of  producing  evi- 
dence. 

"(c)  Suppose,  however,  that  the  proponent  is  able  to  go  further 
and  to  adduce  evidence  which  if  believed  would  make  it  beyond  reason 
to  repudiate  the  proponent's  claim, — evidence  such  that  the  jury,  acting 
as  reasonable  men,  must  be  persuaded  and  must  render  a  verdict  on 
that  issue  for  the  proponent.  Here  the  proponent  has  now  put  himself 
in  the  same  position  that  was  occupied  by  the  opponent  at  the  opening 
of  the  trial,  i.  e.  unless  the  opponent  now  offers  evidence  against  the 
claim  and  thus  changes  the  situation,  the  jury  should  not  be  allowed 
to  render  a  verdict  against  reason, — a  verdict  which  would  later  have 
to  be  set  aside  as  against  evidence.  The  matter  is  thus  in  the  hands  of 
the  judge  again,  as  having  the  supervisory  control  of  the  proof;  and 
now  he  may,  as  applying  a  rule  of  law,  require  the  opponent  to  pro- 
duce evidence,  under  penalty  of  losing  the  case  by  direction  of  the 
judge.  Thus,  a  duty  of  producing  evidence,  under  this  penalty  for 
default,  has  now  arisen  for  the  opponent.  It  arises  for  the  same 
reasons,  is  measured  by  the  same  tests,  and  has  the  same  consequences 
as  the  duty  of  production  which  was  formerly  upon  the  proponent. 
There  are,  however,  two  ways  in  which  it  may  be  invoked  by  the 
judge,  differing  widely  in  terms  and  in  appearance,  but  essentially  the 
same  in  principle,  (c')  In  the  ordinary  case,  this  overwhelming  mass 
of  evidence,  bearing  down  for  the  proponent,  will  be  made  up  of  a 
variety  of  complicated  data  differing  in  every  new  trial  and  not  to  be 
tested  by  any  set  formulas.  The  judge's  ruling  will  be  based  on  a 
survey  of  this  mass  of  evidence  as  a  whole;  and  it  will  direct  the 
jury  on  that  issue  to  render  a  verdict  on  that  mass  of  evidence  for  the 
proponent.  The  propriety  of  this  has  sometimes  been  doubted  by 
Courts  who  do  not  believe  the  process  to  be  precisely  analogous  to 
that  of  directing  a  nonsuit  for  the  proponent  or  of  enforcing  a  pre- 
sumption, as  shortly  to  be  explained;  but  the  better  authority  gives 
ample  recognition  to  this  process,  (c")  Another  mode  under  which 
this  process  is  carried  out  employs  the  aid  of  a  fixed  rule  of  law,  i.  e. 
a  presumption,  applicable  to  inferences  from  specific  evidence  to  spe- 
cific facts  forming  part  of  the  issue,  rather  than  to  the  general  mass 
of  evidence  bearing  on  the  proposition  in  issue.  If  it  is  a  part  of  the 
proponent's  case,  for  example,  to  prove  that  a  person  is  deceased,  and 
he  has  offered  evidence  that  the  person  has  been  absent,  unheard  from, 


I 


No.  605.  THEORY  AND  DEFINITIONS.  693 

for  seven  years  or  more,  and  there  is  no  other  evidence  on  the  sub- 
ject, then  the  proponent  may  ask  that  the  jury  be  directed,  if  they 
beheve  this  fact  of  absence,  to  take  as  true  the  proposition  that  the 
person  is  deceased;  if  that,  moreover,  wQve  the  only  proposition  at 
issue,  then  the  direction  would  be  to  find  a  verdict  for  the  proponent 
if  this  fact  of  absence  were  believed.  The  result  is  the  same  as  in  the 
preceding  form  of  the  process  (c'),  i.  e.  the  opponent  loses  as  a  matter 
of  law,  in  default  of  evidence  to  the  contrary;  in  other  words,  the 
presumption  creates  for  the  opponent  a  duty  of  producing  evidence,  in 
default  of  which  he  loses  as  a  matter  of  legal  ruling,  the  matter  not 
being  open  for  the  jury,  and  the  risk  of  non-persuasion,  which  applies 
only  to  the  jury's  deliberations,  having  ceased  to  affect  the  proponent. 
This  particular  form  of  the  process,  however  (c"),  happens  to  have 
become  known  as  a  'presumption.'  The  term  'presumption'  has  been 
the  subject  of  much  confused  usage.  The  particular  ambiguity  which 
we  need  here  to  guard  against  is  the  confusion  between  the  inference 
itself — i.  e.  the  propriety  of  making  the  inference  from  the  evidence  to 
the  factum  probandum,'^ — and  the  effect  of  the  inference  in  the  hands 
of  the  judge.  So  far  as  'presumption'  means  anything  for  the  present 
purpose,  it  signifies  a  ruling  as  to  the  duty  of  producing  evidence. 

"(rf)  Keeping  in  mind,  then,  that  a  presumption  signifies  a  ruling 
of  law,  and  that  to  this  extent  the  matter  is  in  the  judge's  hands  and 
not  the  jury's,  what  is  the  effect  upon  the  legal  situation  of  the  op- 
ponent if  he  does  respond  to  this  duty  and  comes  forward  with  other 
evidence  against  the  fact  presumed?  When  he  has  thus  fulfilled  his 
duty  under  the  ruling  of  law,  he  puts  himself  out  of  the  hands  of  the 
judge  and  his  ruling,  and  finds  himself  back  again  in  the  hands  of  the 
jury.  He  is  precisely  where  the  proponent  was  in  the  first  place  when 
he  fulfilled  the  duty,  then  his,  of  producing  evidence  and  succeeded  in 
getting  from  the  judge  to  the  jury.  The  case  is  now  open  again  as  to 
that  specific  issue,  i.  e.  free  from  any  liability  to  a  ruling  of  law 
against  either  side,  and  is  before  the  jury,  where  the  original  propo- 
nent (as  ever,  when  the  issue  is  open  to  the  jury)  has  the  burden  of 
proof  in  the  sense  of  the  risk  of  non-persuasion  of  the  jury.  The 
important  thing  is  that  there  is  now  no  longer  in  force  any  ruling  of 
law  by  the  judge  requiring  the  jury  to  find  according  to  the  presump- 
tion. 'All  is  then  turned  into  an  ordinary  question  of  evidence,  and 
the  two  or  three  general  facts  presupposed  in  the  rule  of  presumption 
take  their  place  with  the  rest,  and  operate,  with  their  own  natural 
force,  as  a  part  of  the  total  mass  of  probative  matter.  .  .  .  The  main 
point  to  observe  is  that  the  rule  of  presumption  has  vanished ;'  be- 
cause its  function  was  as  a  legal  rule  to  settle  the  matter  only  pro- 


2 — This    is    one    of    the    earlier    uses    of  sorts,   viz.,    violent,   probable,    and    liRht    or 

"presumption";    it   is    in   effect    an    equiva-  temerary"    (Co.    Litt.    6,   fc).     This   is   what 

lent     of     "inference."       Such     are     Coke's  is  usually  meant  by  "presumption  of  fact." 
"presumptions,     whereof     there     be     three 


694 


BURDEN    OF   PROOF,   AND   PRESUMPTIONS. 


No.  605. 


visionally,  and  to  cast  upon  the  opponent  the  duty  of  producing  evi- 
dence, and  this  duty  and  this  legal  rule  he  has  satisfied.^ 

"(e)  Are  there  any  further  stages  in  this  possible  shifting  of  the 
duty  of  producing  evidence?  It  is  conceivable  that  the  proponent  may 
be  able  to  invoke  other  presumptions,  though  this  is  not  common.  But 
may  not  the  opponent  go  further  than  produce  evidence  sufficient  to 
remove  the  presumption  ?  May  he  not  only  get  the  issue  opened 
before  the  jury  again,  but  also  go  further  and  raise  what  may  be 
termed  a  counter-presumption  in  his  favor,  so  that  the  proponent  will 
find  himself  in  his  original  position  at  the  opening  of  the  trial,  namely, 
subject  to  the  duty  of  producing  sufficient  evidence  to  go  the  jury, 
under  penalty,  in  case  of  default,  of  suffering  a  ruling  against  him  by 
the  judge  as  a  matter  of  law?  This  result  is  possible  in  principle, 
and  there  are  instances  of  it,  though  rare.  For  example,  a  plaintiff, 
in  an  action  for  the  burning  of  his  property  by  the  defendant  rail- 
way-company's negligence,  created  a  presumption  of  negligence  by 
showing  the  setting  of  the  fire  by  sparks  from  the  defendant's  loco- 
motive; the  duty  of  producing  evidence  was  thus  put  upon  the  defen- 
dant, who  not  only  removed  it  by  producing  evidence  sufficient  to  go 
to  the  jury,  but  by  showing  the  proper  construction,  equipment,  and 
inspection  of  the  locomotive  was  held  to  have  raised  a  presumption 
that  it  had  not  been  negligent  and  thus  to  be  entitled  to  a  ruling  by 
the  judge  against  the  plaintiff,  taking  the  case  from  the  jury.* 

"The  important  practical  distinction  between  these  two  senses  of 
'burden  of  proof  is  this:   This  risk  of  non-persuasion  operates  when 


3 — The  following  passage  from  Profes- 
sor Austin  Abbott's  article,  in  the  Uni- 
versity Law  Review,  II,  59,  will  serve  to 
illustrate  the  general  situation  involved  in 
this  duty  of  producing  evidence:  "To  use 
a  homely  illustration,  a  civil  jury  trial 
may  be  compared  to  a  game  of  shuffle- 
board.  The  first  and  nearest  to  the  play- 
ery  is  the  field  of  mere  scintillas;  if  the 
plaintiff's  evidence  halts  there,  he  is  lost. 
The  next,  or  middle,  field  is  that  ot 
balancing  probabilities:  if  his  evidence 
reaches  and  rests  there,  he  gets  to  the 
jury;  but  they  alone  can  decide  the  cause, 
and  they  may  decide  it  either  way  or 
disagree.  The  third  and  last  field  is  that 
of  legal  conclusion:  if  his  evidence  can  be 
pushed  into  that  division,  he  is  entitled 
to  his  victory  at  the  hands  of  the  judge, 
and  the  jury  cannot  draw  it  into  doubt; 
but  before  the  judge  can  do  so,  the  de- 
fendant has  a  right  to  give  evidence,  and 
that  evidence  may  bring  the  plaintiff's 
evidence  back  into  doubt  again,  and  leave 
the  case  in  the  field  of  balancing  probabil- 
ities." 

4 — "The  various  possible  stages  in  the 
foregoing    process    may    be    illustrated    by 


a  diagram;  the  particular  usefulness  of 
the  graphic  method  being  that  it  shows  in 
small  compass  the  relation  of  the  stages 
aaid  the  vital  distinction  between  the 
judge's  and  the  jury's  situation  for  the 
two   kinds   of  burdens: 


Proponent: 

DF  E 
A >- 


Z'-t^ 


P    T 


K' 

— < A' 

Opponent 


Let  A  —  the  starting-point  of  the  pro- 
ponent having  the  risk  of  non-persuasion 
on   a   given   issue; 

A'  =  the  starting-point  of  the  oppon- 
ent on  the  issue; 

Z  —  the  point  of  complete  persuasion 
or  proof   for   the   proponent; 

Z'  =  the  corresponding  point  for  the 
opponent.      The    proponent    then    finds,    as 


No.  605.  THEORY  AND  DEFINITIONS.  695 

the  case  has  come  into  the  hands  of  the  jury,  while  the  duty  of  pro- 
ducing evidence  implies  a  liability  to  a  ruling  by  the  judge  disposing 
of  the  issue  without  leaving  the  question  open  to  the  jury's  delibera- 
tions. 

"Tests  for  ascertaining  this  Burden.  The  term  'burden  of  proof 
is  used  commonly  as  applying  equally  to  the  two  preceding  kinds  of 
situations,  and  often  is  applied  in  both  senses  in  the  same  judicial 
opinion.  Apart,  therefore,  from  the  difficulty  of  some  of  the  problems 
of  law  germane  to  each  situation,  peculiar  confusion  is  added  by  the 
unfortunate  ambiguity  of  the  terms  of  discussion.  There  is  at  this 
day  a  fairly  widespread  acceptance  and  understanding,  in  judicial 
utterances,  of  the  distinction  between  the  two  things  themselves,  the 
risk  of  non-persuasion  of  the  jury,  and  the  duty  of  going  forward 
with  evidence  sufficient  to  satisfy  the  ruling  of  the  judge.  The  law 
which  regulates  respectively  this  risk  and  this  duty  is  in  most  respects 
either  generally  settled  or  is  the  subject  of  local  differences  of  decision 
whose  lines  of  dispute  are  not  difficult  to  discern.  The  main  source 
of  difficulty  lies  in  the  interchangeable  use  of  the  term  'burden  of 
proof,'  which  forces  the  judges  from  time  to  time  to  distinguish,  ex- 
plain, repudiate  former  judicial  utterances  employing  analogous  lan- 
guage but  dealing  with  distinct  situations ;  and  thus  there  is  an  appear- 
ance (and  to  some  extent,  a  reality)  of  confusion  in  the  precedents 
on  the  subject. 

"As  to  the  tests  for  determining  this  second  burden  of  proof,  it 
has  already  been  pointed  out  that  (a)  for  the  one  burden  (the  risk 
of  non-persuasion  of  the  jury)  the  substantive  law  and  the  pleadings, 
primarily,  serve  to  do  this,  and,  subsidiarily,  a  rule  of  practice,  within 

Boon  as  he  begins  his  production  of  evi-  the  jury  again.  Here,  however,  the  risk 
dence,  that  at  any  point  between  A  and  of  non-persuasion  of  the  jury  is  still,  as 
K  he  is  subject  to  a  ruling  of  the  judge  before,  upon  the  proponent  for  that  issue; 
defeating  him  for  lack  of  sufficient  evi-  but  neither  party  has  any  duty  to  satisfy 
dence.  After  reaching  K,  and  obtaining  the  judge.  Further,  however,  the  oppon- 
a  judicial  ruling  in  his  favor  as  to  suffi-  ent  may  succeed  in  reaching  point  P',  at 
ciency  of  evidence,  he  is  now  free  from  which  the  judge,  cither  by  a  general  rule 
his  duty  of  producing  evidence  to  the  of  counter  presumption  or  by  a  specific 
judge,  and  has  only  his  risk  of  non-per-  ruling  on  the  mass  of  evidence  will  order 
suasion  of  the  jury.  But  he  may  be  able  a  verdict  for  the  opponent,  unless  the 
to  reach  with  his  evidence  the  point  P,  proponent  comes  forward  with  more  evi- 
and  invoke  again  the  control  of  the  judge,  dence.  Thus  the  proponent  again  has 
thus  shifting  to  the  opponent  the  duty  the  liability  to  produce  some  evidence, 
of  producing  evidence.  This  may  be  done  and  must  again  attain  point  K,  in  order 
either  by  some  general  rule  of  presump-  to  come  into  the  field  of  the  jury  once 
tion  that  is  applicable,  or  by  a  specific  more.  The  process,  however,  seldom 
ruling  of  the  judge  upon  the  mass  of  reaches  these  advanced  stages.  If  the  par- 
evidence  adduced.  If  the  duty  is  thus  ties  cease  all  production  of  evidence  while 
created  for  the  opponent,  he  starts  from  the  case  is  between  points  K  and  P  or  K' 
point  A'  to  sustain  it.  Until  he  has  and  P',  i.  e.  when  the  risk  of  non-per- 
by  some  evidence  reached  point  K'  he  is  suasion  of  the  jury  comes  to  be  the  only 
liable  to  a  judicial  ruling  defeating  him  and  final  stage,  there  are  rules  for  the 
on  that  issue.  If  he  can  reach  point  K',  jury's  guidance,  namely,  the  rules  for 
the  duty  and  liability  of  satisfying  the  preponderance  of  evidence  and  reason- 
judge  disappears,  and  he  is  in  the  field  of  able  doubt."     (Quoted  from  \V'.,  5  ^487.) 


696  BURDEN    OF   PROOF,   AND   PRESUMPTIONS.  ISTC  605. 

the  stage  of  a  single  pleading,  may  further  apportion  the  burden;  but 
this  apportionment  depends  ultimately  on  broad  considerations  of 
policy,  and,  for  individual  instances,  there  is  nothing  to  do  but  ascer- 
tain the  rule,  if  any,  that  has  been  judicially  determined  for  that  par- 
ticular class  of  cases.  (&)  For  the  other  burden  (the  duty  of  going 
forward  with  evidence  to  satisfy  the  judge)  there  is  always,  at  the 
outset,  such  a  duty  for  the  party  having  the  first  burden,  or  risk  of 
non-persuasion,  until  by  some  rule  of  law  (either  by  a  specific  ruling 
of  the  judge  upon  the  particular  evidence,  or  by  the  aid  of  an  appro- 
priate presumption,  or  by  matter  judicially  noticed)  this  line  is 
passed.  Then  comes  the  stage  in  which  there  is  no  such  duty  of  law 
for  either  party  (although,  if  the  proponent  has  invoked  some  pre- 
sumption, this  stage  is  immediately  passed  over).  Then,  either  by 
a  ruling  on  the  general  mass  of  evidence,  or  by  the  aid  of  some  appli- 
cable presumption,  the  duty  of  law  arises  anew  for  the  opponent. 
Finally,  it  may  supposably,  by  similar  modes,  be  later  re-created  for  the 
proponent.  There  is  therefore  no  one  test,  of  any  real  significance,  for 
determining  the  incidence  of  this  duty;  at  the  outset  the  test  is  fur- 
nished by  ascertaining  who  has  the  burden  of  proof,  in  the  sense  of 
the  risk  of  non-persuasion  of  the  jury,  under  the  pleadings  or  other 
rules  declaring  what  facta  probanda  are  the  ultimate  facts  of  each 
party's  case;  a  little  later,  the  test  is  whether  the  proponent  has  by  a 
ruling  of  the  judge  (based  on  the  sufficiency  of  the  evidence,  or  a  pre- 
sumption, or  a  fact  judicially  noticed)  fulfilled  this  duty;  later  on,  it 
will  be  whether  the  proponent,  by  a  ruling  of  the  judge  upon  a  pre- 
sumption or  the  evidence  as  a  whole,  has  created  a  duty  for  the  pro- 
ponent; and  still  later,  whether,  for  the  purposes  of  the  judge's  ruling, 
the  proponent  has  satisfied  this  duty.  It  has  been  suggested  that  'the 
test  ought  in  strict  accuracy  to  be  expressed  thus,  namely:  which  party 
would  be  successful  if  no  evidence  at  all,  or  no  more  evidence  (as  the 
case  may  be),  were  given?  But  it  is  obvious  that  this  is  not  a  test,  in 
any  sense  of  being  a  useful  mode  for  ascertaining  the  unknown  from 
the  known ;  it  is  simply  defining  and  re-stating  in  other  words  the  effect 
of  this  duty  of  producing  evidence;  it  says  'the  burden  of  proof,  in 
this  sense,  means  that  the  party  liable  to  it  will  lose  as  a  matter  of 
judicial  ruling  if  no  evidence  or  no  more  evidence  is  given  by  him'; 
and  this  does  not  solve  the  main  problem  of  determining  in  a  given 
case  which  is  the  party  thus  liable  to  these   consequences. 

"Shifting  the  Burden  of  Proof.  (a)  The  first  burden  above 
described — the  risk  of  non-persuasion  of  the  jury — never  shifts,  since 
no  fixed  rule  of  law  can  be  said  to  shift.  The  law  of  pleading,  or, 
within  the  stage  of  a  given  pleading,  some  further  rule  of  practice, 
fixes  beforehand  the  issuable  facts  respectively  apportioned  to  the 
case  of  each  party ;  each  party  may  know  beforehand,  from  these  rules, 
what  facts  will  be  a  part  of  his  case,  so  far  as  concerns  the  ultimate 
risk  of  non-persuasion.  He  will  know  from  these  rules  that  such 
facts,   whenever   the   time   comes,   will   be   his   to   prove,    and   not   the 


No.  605.  THEORY  AND  DEFINITIONS.  697 

Other's,  or  possibly  his  and  possibly  the  other's.  The  other  party  and 
himself  will  of  course  have  their  turns  in  proving  their  respective 
facta  probanda  (though  under  a  strict  system  of  pleading  these  turns 
of  proof  vi^ill  be  more  clearly  fixed  before  trial,  and  may  occur  at 
different  stages  and  not  the  same  stage  of  the  cause)  ;  and  the  putting- 
in  of  evidence  may  therefore  'shift'  in  the  sense  that  each  will  take 
his  turn  in  proving  the  respective  propositions  apportioned  to  him. 
But  the  burden  does  not  'shift'  in  any  real  sense;  for  each  may  once 
for  all  ascertain  beforehand  from  rules  of  law  the  facta  probanda 
apportioned  to  him,  and  this  apportionment  will  always  remain  as 
thus  fixed,  to  whatever  stage  the  cause  may  progress. 

"(&)  The  second  kind  of  burden,  however — the  duty  of  producing 
evidence  to  satisfy  the  judge, — does  have  this  characteristic  referred 
to  as  a  'shifting.'  It  is  the  same  kind  of  a  duty  for  both  parties,  but 
it  may  rest  (within  the  same  stage  of  pleading  and  upon  the  same 
issue  and  during  one  burden  of  the  first  sort)  at  one  time  upon  one 
party  and  at  another  time  upon  the  other.  Moreover,  neither  party 
can  ascertain  absolutely  beforehand  at  what  time  it  will  come  upon 
him  or  cease  to  be  upon  him  or  by  what  evidence  it  will  be  removed 
or  created, — except  so  far  as  a  presumption  has  by  a  rule  of  law  been 
laid  down  as  determining  the  effect  attached  to  certain  facts.  More- 
over, in  a  distinctive  sense,  this  kind  of  burden  'shifts'  and  the  other 
does  not,  in  that  during  the  unchanged  prevalencje  of  the  first  kind 
of  burden  for  one  party,  the  second  kind  may  be  shared  in  turn  by  one 
and  the  other,  though  the  first — the  risk  of  non-persuasion  of  the 
jury,  should  the  case  be  left  in  their  hands — has  not  come  to  an  end. 

"Legal  Effect  of  a  Presumption.  The  whole  situation  is  compli- 
cated, quite  apart  from  any  ambiguity  of  terms,  by  the  operation  of 
presumptions  upon  specific  fragments  of  the  issue  under  a  single  plead- 
ing, in  combination  with  the  established  practice  of  leaving  to  the 
jury  for  a  general  verdict  the  whole  of  the  issues  under  a  pleading. 
For  example,  suppose  that  the  whole  of  the  plaintiff's  case  and  the 
whole  proposition  as  to  which  he  has  the  burden  of  proof  in  the  first 
sense  and  the  whole  of  the  issue  under  the  pleadings  is  that  A  is  dead 
without  heirs;  suppose  that  the  plaintiff  has  offered  testimony  that  A 
has  been  for  seven  years  absent  from  home  and  unheard  from,  and 
that  there  is  also  testimony  in  contradiction  of  these  facts  from  the 
defendant  and  also  testimony  from  both  sides  as  to  the  existence  of 
heirs.  Here  it  is  obvious  that  the  case  is  not  in  the  hands  of  the 
judge  to  order  a  verdict  for  the  plaintiff,  first,  because  the  death  of  the 
plaintiff,  assuming  the  presumption  from  absence  to  determine  this, 
is  not  the  only  proposition  essential  to  the  plaintiff's  case,  and, 
secondly,  because  he  cannot  pass  upon  the  truth  of  the  plaintiff's  con- 
tradicted testimony  as  to  absence  and  therefore  it  cannot  then  be 
known  whether  the  fact  exists  on  which  the  presumption  operates; 
and  thus  the  case  is  still  in  appearance  in  the  hands  of  the  jury. 
Nevertheless,  the  matter  is  still  in  the  hands  of  the  judge   (in  theory 


698 


BURDEN    OF   PROOF,    AND   PRESUMPTIONS. 


No.  605. 


of  law,  at  least)  as  much  as  it  ever  was;  that  is  to  say,  the  pre- 
sumption or  rule  of  law  still  operates  that  the  fact  of  absence  for 
seven  years  unheard  from  is  to  be  taken,  by  a  rule  of  law  independent 
of  the  jury's  belief,  as  equivalent  to  death,  in  the  absence  of  any 
explanatory  facts  to  the  contrary  from  the  defendant.  This  rule  of 
law  is  still  applied,  notwithstanding  the  additional  elements  in  the 
case;  for  the  judge  will  instruct  the  jury  that  if  they  find  the  fact 
of  absence  for  seven  years  unheard  from,  and  find  no  explanatory  facts 
to  account  for  it,  then  by  a  rule  of  law  they  are  to  take  for  true  the 
fact  of  death  and  are  to  reckon  upon  it  accordingly  in  making  up 
their  verdict  upon  the  whole  issue.  The  situation  here  is  even 
simpler  than  it  is  in  perhaps  the  majority  of  issues  in  litigation;  so 
that  the  theoretical  tends  to  be  lost  sight  of,  in  that  the  issue  does  go 
to  the  jury  and  the  case  of  the  opponent  of  the  presumption  is  appar- 
ently not  brought  to  an  end  by  a  ruling  of  the  judge.  Nevertheless, 
in  theory  this  legal  effect  is  merely  postponed,  and  will  have  due  place 
if  the  jury  understands  the  instructions  and  does  its  duty." 


No.  606.  BOOK  II.  699 


TITLE   I. 

GENERAL  PRINCIPLES  FOR  THE  TWO  KINDS 
OF  BURDEN  OF  PROOF. 

BARRY  V.  BUTLIN  (1838). 
2  Moore   P.  C.  480. 

Pendock  Barry,  of  Tollerton  Hall,  in  the  County  of  Nottingham, 
the  testator  respecting  the  vaHdity  of  whose  will  the  present  appeal 
arose,  died  on  the  13th  of  March,  1833,  at  the  age  of  seventy- 
six  years,  a  widower,  leaving  behind  him  the  appellant,  his  son 
and  heir,  and  only  next  of  kin.  On  the  24th  of  September,  1827,  the 
deceased  executed  his  will  in  duplicate,  at  the  house  of  Percy,  his 
attorney,  in  the  presence  of  two  witnesses,  whereby  he  appointed  the 
respondent,  James  Butlin,  sole  executor  and  residuary  legatee,  and 
amongst  other  legacies  bequeathed  to  Percy  £3,000,  to  Butlin  £2,000, 
and  to  Whitehead,  his  butler,  £3,000.  The  validity  of  this  will  was 
disputed  by  the  appellant,  on  the  ground  that  the  execution  was  pro- 
cured by  the  fraud  and  conspiracy  of  Percy,  Butlin,  and  Whitehead, 
at  a  time  when  the  deceased  was  of  unsound  mind,  and  wholly  in- 
capable of  making  or  executing  a  will,  or  of  doing  any  act  requiring 
thought,  judgment,  and  reflection.  The  respondent  propounded  the 
above  will  for  probate  in  the  Prerogative  Court  of  Canterbury,  and  an 
appeal  was  taken  from  the  decree  in  its  favor. 

Parke,  B.  :  "The  rules  of  law  according  to  which  cases  of  this 
nature  are  to  be  decided,  do  not  admit  of  any  dispute,  so  far  as  they 
are  necessary  to  the  determination  of  the  present  appeal:  and  they 
have  been  acquiesced  in  on  both  sides.  These  rules  are  two;  the 
first,  that  the  onus  probandi  lies  in  every  case  upon  the  party  pro- 
pounding a  will;  and  he  must  satisfy  the  conscience  of  the  court  that 
the  instrument  so  propounded  is  the  last  will  of  a  free  and  capable 
testator.  The  second  is,  that  if  a  party  writes  or  prepares  a  will, 
under  which  he  takes  a  benefit,  that  is  a  circumstance  that  ought  gen- 
erally to  excite  the  suspicion  of  the  court,  and  calls  upon  it  to  be 
vigilant  and  jealous  in  examining  the  evidence  in  support  of  the  in- 
strument, in  favor  of  which  it  ought  not  to  pronounce  unless  the  sus- 
picion is  removed,  and  it  is  judicially  satisfied  that  the  paper  pro- 
pounded does  express  the  true  will  of  the  deceased.  .  . 

"If  [in  the  authority  cited  by  the  appellant]  it  is  intended  to  be 
stated  as  a  rule  of  law,  that  in  every  case  in  which  the  party  pre- 
paring a  will  derives  a  benefit  under  it.  the  onus  prohaudi  is  shifted, 
and  that  not  only  a  certain  measure  but  a  particular  species  of  proof 


700  BURDEN    OF   PROOF,    AND    PRESUMPTIONS.  No.  606. 

is  thereupon  required  from  the  party  propounding  the  will, — we  feel  j 
bound  to  say  that  we  assume  the  doctrine  to  be  incorrect.  The  strict 
meaning  of  the  term  onus  probandi  is  this,  that  if  no  evidence  is  given 
by  the  party  on  whom  the  burden  is  cast,  the  issue  must  be  found 
against  him.  In  all  cases  the  onus  is  imposed  on  the  party  propound- 
ing the  will;  it  is  in  general  discharged  by  proof  of  capacity  and  the 
fact  of  execution,  from  which  the  knowledge  of  and  assent  to  the 
contents  of  the  instrument  are  assumed,  and  it  cannot  be  that  the 
simple  fact  of  the  party  who  prepared  the  will  being  himself  a  legatee, 
is  in  every  case,  and  under  all  circumstances,  to  create  a  contrary 
presumption,  and  to  call  upon  the  court  to  pronounce  against  the  will, 
unless  additional  evidence  is  produced  to  prove  the  knowledge  of  its 
contents  by  the  deceased.  A  single  instance,  of  not  unfrequent  occur- 
rence, will  test  the  truth  of  this  proposition.  A  man  of  acknowledged 
competence  and  habits  of  business,  worth  £100,000,  leaves  the  bulk  of 
his  property  to  his  family,  and  a  legacy  of  £50  to  his  confidential  at- 
torney, who  prepared  the  will :  would  this  fact  throw  the  burden  of 
proof  of  actual  cognizance  by  the  testator,  of  the  contents  of  the  will, 
on  the  party  propounding  it,  so  that  if  such  proof  were  not  supplied, 
the  will  would  be  pronounced  against?  The  answer  is  obvious,  it 
would  not.  All  that  can  be  truly  said  is,  that  if  a  person,  whether 
attorney  or  not,  prepares  a  will  with  a  legacy  to  himself,  it  is,  at 
most,  a  suspicious  circumstance,  of  more  or  less  weight,  according  to 
the  facts  of  each  particular  case ;  in  some  of  no  weight  at  all,  as  in 
the  case  suggested,  varying  according  to  circumstances.  .  .  .  We  think, 
therefore,  on  the  whole,  that  the  evidence  of  the  factum,  coupled  with 
the  strong  probabilities  of  the  case,  is  [in  this  case]  sufficient  to  re- 
move the  suspicions  which  naturally  belong  to  the  case  of  all  wills 
prepared  by  persons  in  their  own  favor,  especially  when  made  by 
those  of  weak  capacity." 


HINGESTON  v.  KELLY  (1849). 
18  L.  J.  Exch.  360. 

Action  for  work  and  labor,  tried  before  Denman,  L.  C.  J.  The 
plaintiff  was  an  attorney,  and  with  the  assent  of  the  defendant  acted 
for  the  defendant  as  an  election  agent  in  a  contest  for  the  bor- 
""*  ough  of  Lyme  Regis,  which  the  defendant  was  a  candidate  to 
represent-  in  parliament.  It  also  appeared  from  the  evidence  of  the 
plaintiff's  witnesses,  that  the  plaintiff  had  voted  for  the  defendant  at 
the  election,  although  a  paid  agent  is  not  permitted  by  law  to  vote. 
The  defendant  produced  evidence  to  show  that  it  was  agreed  that  the 
plaintiff's  services  were  to  be  given  gratuitously.  His  Lordship  in 
summing  up  told  the  jury,  that  the  plaintiff,  having  proved  the 
services  rendered,  was  prima  facie  entitled  to  be  paid,  and  that  they 
should  find  for  the  plaintiff,  unless  the  defendant  had  distinctly  proved 
to  their  satisfaction  that  the  contract  was  that  the  services  were  to 


No.  608.  I.      GENERAL  PRINCIPLES.  701 

be  gratuitous,  in  which  case  they  ought  to  find  for  the  defendant.     The 
jury  found  for  the  plaintiff. 

Parke,  B.  :  'The  great  difficulty  in  my  mind  is  whether,  looking 
to  Lord  Denman's  summing  up,  the  jury  understood  that  the  burthen 
of  proof  still  lay  on  the  plaintiff.  The  burthen  of  proof  was  never 
altered.  The  plaintiff  being  a  professional  man,  and  performing  pro- 
fessional services,  was  prima  facie  entitled  to  remuneration.  His 
voting,  indeed,  was  an  act  which  amounted  to  a  statement  by  himself 
that  he  was  not  to  be  paid.  Still,  if  the  case  had  rested  there,  the  jury, 
notwithstanding  the  voting,  might  have  believed  that  the  contract  was 
that  the  plaintiff  was  to  be  paid.  Then  came  the  evidence  for  the  de- 
fendant to  show  that  the  agreement  was  that  the  plaintiff  should  not 
be  paid.  After  this  was  given,  the  question  for  the  jury  still  remained, 
whether  on  the  whole  evidence  the  plaintiff  had  made  out  his  title  to 
remuneration.  I  think,  if  I  had  been  a  juryman,  that  on  the  facts  of 
this  case  I  should  have  found  my  verdict  against  the  party,  whether 
the  plaintiff  or  the  defendant,  on  whom  I  was  told  by  the  judge  that 
the   burthen   of   proof   lay." 


ABRATH  v.  NORTH  EASTERN  R.  CO.  (1883). 
L.  R.  II  Q.  B.  D.  440. 

Malicious  prosecution.  On  the  loth  of  September,  1880,  a  col- 
lision occurred  at  Ferry  Hill  station,  on  the  defendant's  railway,  and 
one  M.  McMann  alleged  that  he  had  thereby  sustained  injuries. 
608  McMann  was  attended  by  the  plaintiff,  G.  A.  Abrath,  a  doctor 
of  medicine  and  surgery,  and  McMann  brought  an  action  against  the 
defendants  to  recover  damages.  The  action  by  McMann  stood  for 
trial  at  the  Northumberland  Summer  Assizes,  188 1,  but  it  was  settled 
by  the  defendants  paying  to  the  plaintiff  McMann,  725/.  damages,  and 
330/.  costs.  Afterwards,  upon  information  given  to  the  railway  com- 
pany, counsel  advised  that  there  was  a  good  case  for  prosecuting  a 
charge  of  conspiracy  against  McMann  and  Dr.  Abrath,  his  medical 
adviser.  Two  eminent  medical  men  were  of  opinion  that  the  case 
of  the  alleged  injuries  to  McMann  was  an  imposture.  Thereupon  the 
defendants  caused  an  information  to  be  laid  before  justices,  against 
the  plaintiff,  Dr.  Abrath,  on  a  charge  of  conspiracy  to  cheat  and  de- 
fraud the  defendants.  He  was  committed  for  trial  and  was  tried  in 
January,  1882,  and  acquitted,  the  foreman  of  the  jury  adding  that  it 
was  the  unanimous  wish  of  the  jury  that  he  should  leave  the  Court 
without  a  stain  upon  his  character.  He  thereupon  commenced  the 
present    action. 

Cave,  J.,  in  summing  up  to  the  jury,  told  them  that  it  was  for  the 
plaintiff  to  establish  a  want  of  reasonable  and  probable  cause  and 
malice,  and  then  proceeded  as  follows:  "With  regard  to  this  ques- 
tion, you  must  bear  in  mind  that  it  lies  on  the  plaintiff  to  prove  that 


702  BURDEN    OF   PROOF,    AND   PRESUMPTIONS.  No.  608. 

the  railway  company  did  not  take  reasonable  care  to  inform  them- 
selves. The  meaning  of  that  is,  if  you  are  not  satisfied  whether  they 
did  or  not,  inasmuch  as  the  plaintiff  is  bound  to  satisfy  you  that  they 
did  not,  the  railway  company  would  be  entitled  to  your  verdict  on 
that  point."  A  new  trial  was  granted,  by  the  Queen's  Bench  Division, 
on  the  ground  that  the  general  rule  should  be  followed,  which  was 
that  the  onus  rested  on  the  person  affirming;  and  that  there  had  been 
a  misdirection  by  Cave,  J.,  in  telling  the  jury  that  the  onus  lay  upon 
the  plaintiff  to  prove  that  the  defendants  had  not  taken  reasonable 
care  to  inform  themselves  of  the  true  state  of  the  case,  and  had  not 
honestly  believed  the  case  which  they  laid  before  the  magistrate.  From 
this  order  a  further  appeal  was  taken  by  the  defendant,  and  allowed; 
the  original  ruling  of  Cave,  J.,  being  affirmed. 

BowEN,  L.  J. :  "This  action  is  for  malicious  prosecution,  and  in 
an  action  for  malicious  prosecution  the  plaintiff  has  to  prove,  first, 
that  he  was  innocent  and  that  his  innocence  was  pronounced  by  the 
tribunal  before  which  the  accusation  was  made ;  secondly,  that  there , 
was  a  want  of  reasonable  and  probable  cause  for  the  prosecution,  or, 
as  it  may  be  otherwise  stated,  that  the  circumstances  of  the  case  were 
such  as  to  be  in  the  eyes  of  the  judge  inconsistent  with  the  existence 
of  reasonable  and  probable  cause;  and,  lastly,  that  the  proceedings  of 
which  he  complains  were  initiated  in  a  malicious  spirit,  that  it,  from , 
an  indirect  and  improper  motive,  and^  not  in  furtherance  of  justice. 
All  those  three  propositions  the  plaintiff  has  to  make  out,  and  if  any] 
step  is  necessary  to  make  out  any  one  of  those  three  propositions,  the 
burden  of  making  good  that  step  rests  upon  the  plaintiff.  I  think  that 
the  whole  of  the  fallacy  of  the  argument  addressed  to  us,  lies  in  a 
misconception  of  what  the  learned  judge  really  did  say  at  the  trial, 
and  in  a  misconception  of  the  sense  in  which  the  term  'burden  of 
proof  was  used  by  him.  Whenever  litigation  exists,  somebody  must 
go  on  with  it;  the  plaintiff  is  the  first  to  begin;  if  he  does  nothing, 
he  fails ;  if  he  makes  a  prima  facie  case,  and  nothing  is  done  to 
answer  it,  the  defendant  fails.  The  test,  therefore,  as  to  the  burden 
of  proof  or  onus  of  proof,  whichever  term  is  used,  is  simply  this:  to 
ask  oneself  which  party  will  be  successful  if  no  evidence  is  given,  or 
if  no  more  evidence  is  given  than  has  been  given  at  a  particular  point 
of  the  case,  for  it  is  obvious  that  as  the  controversy  involved  in  the 
litigation  travels  on,  the  parties  from  moment  to  moment  may  reach 
points  at  which  the  onus  of  proof  shifts,  and  at  which  the  tribunal  will 
have  to  say  that  if  the  case  stops  there,  it  must  be  decided  in  a  particular 
manner.  The  test  being  such  as  I  have  stated,  it  is  not  a  burden  that 
goes  on  for  ever  resting  on  the  shoulders  of  the  person  upon  whom  it 
is  first  cast.  As  soon  as  he  brings  evidence  which,  until  it  is  an- 
swered, rebuts  the  evidence  against  which  he  is  contending,  then  the 
balance  descends  on  the  other  side,  and  the  burden  rolls  over  until 
again  there  is  evidence  which  once  more  turns  the  scale.  That  being 
so,  the  question  of  onus  of  proof  is  only  a  rule  for  deciding  on  whom 


No.  609.  I.      GENERAL  PRINCIPLES.  703 

the  obligation  of  going  further,  if  he  wishes  to  win,  rests.  It  is  not 
a  rule  to  enable  the  jury  to  decide  on  the  value  of  conflicting  evidence. 
.So  soon  as  a  conflict  of  evidence  arises,  it  ceases  to  be  a  question  of 
onus  of  proof. 

"There  is  another  point  which  must  be  cleared  in  order  to  make 
plain  what  I  am  about  to  say.  As  causes  are  tried,  the  term  'onus 
of  proof  may  be  used  in  more  ways  than  one.  Sometimes  when  a 
cause  is  tried  the  jury  is  left  to  find  generally  for  either  the  plaintiff 
or  the  defendant,  and  it  is  in  such  a  case  essential  that  the  judge 
should  tell  the  jury  on  whom  the  burden  of  making  out  the  case  rests, 
and  when  and  at  what  period  it  shifts.  Issues  again  may  be  left  to 
the  jury  upon  which  they  are  to  find  generally  for  the  plaintiff  or  the 
defendant,  and  they  ought  to  be  told  on  whom  the  burden  of  proof 
rests;  and  indeed  it  is  to  be  observed  that  very  often  the  burden  of 
proof  will  be  shifted  within  the  scope  of  a  particular  issue  by  pre- 
sumptions of  law  which  have  to  be  explained  to  the  jury.  .  .  .  Now  in 
an  action  for  malicious  prosecution  the  plaintiff  has  the  burden 
throughout  of  establishing  that  the  circumstances  of  the  prosecution 
were  such  that  a  judge  can  see  no  reasonable  or  probable  cause  for 
instituting  it.  In  one  sense  that  is  the  assertion  of  a  negative,  and  we 
have  been  pressed  with  the  proposition  that  when  a  negative  is  to  be 
made  out  the  onus  of  proof  shifts.  That  is  not  so.  If  the  assertion 
of  a  negative  is  an  essential  part  of  the  plaintiff's  case,  the  proof  of 
the  assertion  still  rests  upon  the  plaintiff.  The  terms  'negative'  and 
'affirmative'  are  after  all  relative  and  not  absolute.  In  dealing  with  a 
question  of  negligence,  that  term  may  be  considered  either  as  negative 
or  affirmative  according  to  the  definition  adopted  in  measuring  the 
duty  which  is  neglected.  Wherever  a  person  asserts  affirmatively  as 
part  of  his  case  that  a  certain  state  of  facts  is  present  or  is  absent, 
or  that  a  particular  thing  is  insufficient  for  a  particular  purpose,  that 
is  an  averment  which  he  is  bound  to  prove  positively.  It  has  been 
said  that  an  exception  exists  in  those  cases  where  the  facts  lie  pecu- 
liarly within  the  knowledge  of  the  opposite  party.  The  counsel  for 
the  plaintiff  have  not  gone  the  length  of  contending  that  in  all  those 
cases  the  onus  shifts,  and  that  the  person  within  whose  knowledge  the 
truth  peculiarly  lies  is  bound  to  prove  or  disprove  the  matter  in  dis- 
pute.   I  think  a  proposition  of  that  kind  cannot  be  maintained." 


POWERS  V.  RUSSELL  (1832). 
IS  Pick.  6p. 

Bill  to  redeem  a  mortgage. 

Shaw,  C.  J.:     "It  is  conceded  that  in   1822,   Nathan  Powers,  the 

brother   of  the   plaintiff,   having   received   a   conveyance   of   the 

*^^      same   estate   from   Peter   Russell   the   defendant,   who   was   then 

his  wife's  father,  on  the  same  day  duly  executed  and  delivered  to  the 


704  BURDEN    OF   PROOF,    AND   PRESUMPTIONS.  No.  609, 

defendant  a  mortgage  deed,  conditioned  to  perform  a  bond  then  en- 
tered into,  to  support  and  maintain  the  defendant  in  the  manner 
therein  more  particularly  specified,  during  his  Hfe.  The  claim  of  the 
plaintiff  is,  that  the  same  Nathan  Powers,  who  has  since  deceased, 
immediately  after  making  the  deed  above  mentioned,  executed  another 
mortgage  deed  to  the  plaintiff,  in  virtue  of  which  he  claims  a  right 
to  redeem.  The  execution  and  delivery  of  this  last  mortgage  are  de- 
nied by  the  defendant,  and  the  points  raised  and  considered  have 
turned  wholly  upon  this  question.  It  is  very  clear,  that  to  enable  the 
plaintiff  to  maintain  his  bill  to  redeem,  he  must  prove  affirmatively, 
that  he  stands  in  the  character  of  a  grantee  of  the  premises  from  the 
original  mortgagor,  and  that  in  regard  to  this  point  the  burden  of 
proof  is  upon  the  plaintiff.  .  .  . 

"It  may  be  useful  to  say  a  word  upon  the  subject  of  the  burden  of 
proof.  It  was  stated  here,  that  the  plaintiff  had  made  out  a  prima 
facie  case,  and,  therefore,  the  burden  of  proof  was  shifted  and  placed 
upon  the  defendant.  In  a  certain  sense  this  is  true.  Where  the  party 
having  the  burden  of  proof  establishes  a  prima  fade  case,  and  no 
proof  to  the  contrary  is  offered,  he  will  prevail.  Therefore  the  other 
party,  if  he  would  avoid  the  effect  of  such  prima  facie  case,  must  pro- 
duce evidence,  of  equal  or  greater  weight,  to  balance  and  control  it,  or 
he  will  fail.  Still  the  proof  upon  both  sides  applies  to  the  affirmative 
or  negative  of  one  and  the  same  issue,  or  proposition  of  fact;  and  the 
party  whose  case  requires  the  proof  of  that  fact,  has  all  along  the 
burden  of  proof.  It  does  not  shift,  though  the  weight  in  either  scale 
may  at  times  preponderate.  But  where  the  party  having  the  burden 
of  proof  gives  competent  and  prima  facie  evidence  of  a  fact,  and  the 
adverse  party,  instead  of  producing  proof  which  would  go  to  negative 
the  same  proposition  of  fact,  purposes  to  show  another  and  a  distinct 
proposition  which  avoids  the  effect  of  it,  there  the  burden  of  proof 
shifts,  and  rests  upon  the  party  proposing  to  show  the  latter  fact. 

"To  illustrate  this; — prima  facie  evidence  is  given  of  the  execu- 
tion and  delivery  of  a  deed;  contrary  evidence  is  given  on  the  other 
side,  tending  to  negative  such  fact  of  delivery;  this  latter  is  met  by 
other  evidence,  and  so  on  through  a  long  inquiry.  The  burden  of 
proof  has  not  shifted,  though  the  weight  of  evidence  may  have  shifted 
frequently;  but  it  rests  on  the  party  who  originally  took  it.  But  ifj 
the  adverse  party  offers  proof,  not  directly  to  negative  the  fact  of 
delivery,  but  to  show  that  the  deed  was  delivered  as  an  escrow,  this 
admits  the  truth  of  the  former  proposition,  and  proposes  to  obviate 
the  effect  of  it,  by  showing  another  fact,  namely,  that  it  was  delivered 
as  an  escrow.     Here  the  burden  of  proof  is  on  the  latter. 

"Applying  these  rules  to  the  present  case,  it  is  manifest  that  the 
burden  of  proof  was  upon  the  plaintiff  through  the  whole  inquiry. 
The  question  was,  whether  the  instrument  was  ever  delivered  by 
Nathan  Powers  to  Chester  Powers  as  his  deed.  This  question  is  to 
be  examined,  as  if  the  original  deed  had  been  first  produced." 


No.  611. 


I.      GENERAL  PRINCIPLES. 


705 


«10 


CARVER  V.  CARVER  (1884). 
97  Ind.  497,  510. 


[The  facts  and  the  opinion  on  the  present  point  are  included  in 
the  quotation  post.  No.  647.] 


REX  V.  ALMON    (1771). 
5  Burr.  2868. 

Criminal  Hbel.  To  charge  the  defendant  as  the  publisher,  evidence 
was  offered  of  a  purchase  of  the  libel,  imprinted  with  the  defendant's 
name  and  bought  in  his  shop.  Mansfield,  L.  C.  J.:  "This 
"^^  being  prima  facie  evidence  of  a  publication  by  the  master  him- 
self, it  stands  good  till  answered  by  him;  and  if  not  answered  at  all, 
it  thereby  becomes  conclusive  so  far  as  to  be  sufificient  to  convict  him. 
.  .  .  [It]  must  stand  till  contradicted  or  explained  or  exculpated  by 
some  other  evidence,  and  if  not  contradicted,  explained  or  exculpated, 
would  be  in  point  of  evidence  sufificient  or  tantamount  to  conclusive. 
...  If  it  be  sufficient  in  point  of  law,  and  the  juryman  believes  it 
[i.  e.  the  fact  of  purchase],  he  is  bound  in  conscience  to  give  his  ver- 
dict according  to  it."  Mr.  Justice  Aston  "laid  down  the  same  maxim 
as  being  fully  and  clearly  established,  'that  prima  facie  evidence  (if 
believed)   is  binding  till  contrary  evidence  be  produced'."^ 


1 — Compare   the    following: 

R.  V.  O'Doherty,  6  State  Tr.  n.  s.  831, 
873  (1848):  Pennefather  B.,  charging 
the  jury,  in  a  prosecution  for  publishing 
an  article  with  seditious  intent:  "The 
publishing  them  is  certainly  prima  facie 
evidence  against  him,  as  being  the  regis- 
tered proprietor  [of  the  newspaper]"  A 
juror:  "There  is  difference  of  opinion 
among  the  jurors;  some  hold  that,  from 
your  lordship  stating  there  being  prima 
facie  evidence  of  the  prisoner's  guilt,  we 
should  at  once  go  to  find  him  guilty; 
others  receiving  the  phase  thus,  that  your 
lordship  did  not  mean  to  convey  that  it 
was  sufficient  [to  require  that  finding]" 
Pennefather,  B. :  "I  did  not  mean,  gen- 
tlemen, to  direct  you  or  tell  you  that  in 
point  of  law,  because  he  was  the  oub- 
lisher  and  proprietor  of  the  paper,  he 
therefore  necessarily  knew  the  contents. 
I  did  not  mean  to  convey  that.  But  I  told 
you  that  it  was  evidence  that  he  did 
know  the  contents,  and  that  you  were  to 
form    your    judgment    upon    the    whole    oi 


the   case,    reading   the    documents    and    the 
evidence." 

Walker,  J.,  in  Cogdell  v.  R.  Co.,  132 
N.  C.  852,  44  S.  E.  6:8  (1903):  "The 
Court  was  requested  to  charge  that  there 
was  a  presumption  that  the  deceased  had 
exercised  care,  which  the  Court  refused 
to  give,  but  charged  the  jury  that  there 
was  an  inference  that  due  care  was  exer- 
cised. The  presumption  has  a  technical 
force  or  weight,  and  the  jury,  in  the 
absence  of  sufficient  proof  to  overcome  it, 
should  find  according  to  the  presump- 
tion; but,  in  case  of  a  mere  inference, 
there  is  no  technical  force  attached  to 
it.  The  jury,  in  the  case  of  an  infer- 
ence, are  at  liberty  to  find  the  ultimate 
fact  one  way  or  the  other  as  they  may  be 
impressed  by  the  testimony.  In  the  one 
case  the  law  draws  a  conclusion  from  the 
state  of  the  pleading^s  and  evidence,  and 
in  the  other  case  the  jury  draw  it.  An 
inference  is  nothing  more  than  a  permis- 
sible deduction  from  the  evidence,  while  a 
presumption  is  compulsory  and  cannot  be 
disregarded   by  the  jury." 


706  BURDEN    OF   PROOF,    AND   PRESUMPTIONS.  No.  612. 

ALABAMA  GREAT  SOUTHERN  R.  CO.  v.  TAYLOR  (1901). 
129  Ala.  2^8,  29  So.  67$. 

Action  by  Mary  E.  Taylor  against  the  Alabama  Great  Southern 
Raulroad  Company.  Judgment  for  plaintiff.  Defendant  appeals.  Re- 
versed. The  complainant  contained  two  counts ;  the  first  read : 
614  "The  plaintiff  claims  of  the  defendant  seventy-five  dollars  dam- 
ages, which  damages  were  caused  by  fire  from  the  engine  operated  by 
defendant,  whereby  said  sum  of  seventy-five  dollars  damages  were 
caused  by  said  defendant  to  said  plaintiff  by  reason  of  said  fire, 
whereby  said  plaintiff's  corncrib  or  building  was  wholly  destroyed, — 
all  caused  by  the  negligence  of  defendant, — and  by  reason  of  said  fire 
said  plaintiff  was  damaged  to  the  amount  of  said  sum  of  seventy-five 
dollars;  wherefore  plaintiff  brings  this  action."  The  defendant  in- 
troduced as  witnesses  the  engineer  and  fireman  who  were  on  the 
engine  that  was  drawing  the  passenger  train  which  passed  the  plain- 
tiff's corncrib  on  the  morning  in  question,  and  the  master  mechanic 
on  the  defendant's  road,  and  the  inspector  of  engines  at  the  de- 
fendant's shops  in  Birmingham.  All  of  these  witnesses  testified  that 
the  engine  was  equipped  with  the  latest  approved  and  improved  spark 
arresters,  devices,  and  appliances  to  prevent  the  escape  of  sparks  from 
the  said  engine;  that  they  had  examined  the  engine  in  question  the 
day  the  plaintiff's  corncrib  was  burned,  and  they  found  the  engine  in 
perfect  condition  in  every  respect;  that  it  was  better  equipped,  so  far 
as  proper  devices  and  appliances  for  preventing  the  escape  of  sparks 
was  concerned,  than  engines  were  generally  upon  well-regulated  roads. 
The  defendant  excepted  to  the  Court's  giving,  at  the  request  of  the 
plaintiff,  the  following  written  charge:  (i)  "If  the  jury  believe  from 
the  evidence  that  the  corncrib  described  in  the  complaint  was  de- 
stroyed by  fire  emitted  from  a  locomotive  of  the  defendant,  then  the 
jury  must  find  for  the  plaintiff,  unless  they  believe  from  the  evidence 
that  the  plaintiff,  after  discovering  the  fire,  by  due  diligence  could 
have  put  out  the  fire  and  saved  the  property  from  destruction."  The 
defendant  requested  the  Court  to  give  to  the  jury  the  following  written 
charges,  and  separately  excepted  to  the  Court's  refusal  to  give  each  of 
them  as  asked:  .  .  .  (10)  "I  charge  you,  gentlemen  of  the  jury,  that 
if  you  believe  from  the  evidence  in  this  case  that  the  engine  in  ques- 
tion at  the  time  of  the  accident  was  supplied  with  the  most  approved 
appliances  and  devices  for  the  prevention  of  fires,  in  use  by  well- 
regulated  railroad  companies  in  this  country,  and  that  such  appliances 
were  well  managed  and  handled  by  the  servants  in  charge  thereof  at 
the  time,  and  that  there  was  no  negligence  upon  the  part  of  the  de- 
fendant by  which  said  fire  was  communicated  to  the  building  in  con- 
test here,  at  or  near  the  said  building,  then  it  is  your  duty  to  find  for 
the  defendant." 

Sharpe,  J. :    "...  Apparently,  in  giving  and  refusing  instructions  to 


No.  613.  I.       GENERAL  PRINCIPLES.  707 

the  jury,  the  trial  Court  proceeded  on  the  theory  that  the  fact,  if 
established,  that  defendant's  engine  communicated  fire  to  the  plaintiff's 
building  was  sufificient  to  fix  upon  the  defendant  the  charge  of  negli- 
gence conclusively.  Such  a  conception  is,  in  view  of  the  evidence,  at 
variance  with  principles  declared  by  this  Court.  In  actions  of  this 
kind  the  communication  of  fire  to  the  property  of  another  by  an  engine 
of  a  defendant  railroad  company  is,  when  nothing  appears  to  the  con- 
trary, presumed  to  have  been  the  result  of  negligence  on  the  part  of 
the  defendant.  The  presumption  so  arising  is  not  a  conclusive  one, 
so  as  to  preclude  the  defendant  to  rebut  it;  nor  does  it  take  the  place 
of  actual  evidence  of  negligence  further  than  to  cast  upon  the  de- 
fendant the  burden  of  showing  by  evidence  that  at  the  time  of  the 
occurrence  it  was  in  the  exercise  of  ordinary  care  in  respect  to  the 
construction,  equipment,  and  management  of  the  engine.  When,  by 
proof,  it  has  so  repelled  the  presumption,  the  burden  shifts  to  the 
plaintiff,  who  must  go  forward  anew  with  actual  evidence  to  disprove 
that  of  the  defendant,  either  directly  or  inferentially,  by  showing  that 
a  carefully  constructed,  equipped  and  managed  engine  would  not  have 
set  fire  to  the  property.  When  there  is  no  evidence  of  negligence 
other  than  that  supplied  by  the  presumption  referred  to,  and  the  pre- 
sumption has  been,  to  its  full  extent,  repelled  by  undiscredited  evi- 
dence, the  jury  should  find  for  the  defendant,  if  they  believe  the 
evidence,  and  the  Court  should  so  charge,  .if  requested  in  writing  to 
do  so.  .  .  .  These  considerations  force  the  conclusion  that  there  was 
error  in  giving  the  charge  requested  by  the  plaintiff,  and  also  in  the 
refusal  to  give  charge  lo  requested  by  the  defendant." 


MENOMONIE  RIVER  SASH  &  DOOR  CO.  v.  MILWAUKEE  & 

NORTHERN   R.  CO.    (1895). 

pi  Wis.  447,  65  N.  IV.  176. 

This  action  was  brought  to  recover  damages  against  the  defendant 
for  the  negligent  destruction  by  fire  from  one  of  its  locomotives  at 
Marinette,  Wis.,  on  the  30th  of  September,  1891,  of  the  lumber 
"•^**  of  the  Menomonie  River  Sash  &  Door  Company,  in  its  lumber 
yard  adjoining  the  track  of  the  defendant  at  that  place,  of  the  value  of 
about  $7,000.  .  .  .  The  jury  found  a  special  verdict,  in  substance :  .  .  . 

(4)  The   fire   in   question  was   set   by  the   defendant's   switch   engine. 

(5)  Said  engine  was  properly  constructed  and  equipped,  to  prevent  the 
escape  of  sparks  and  cinders.  (6)  Said  engine  was  not  in  good  con- 
dition when  it  passed  the  place  where  the  fire  started.  (7)  As  to 
whether  said  engine  was  properly  managed  when  it  passed  the  place 
where  the  fire  started,  the  answer  was,  "Don't  know."  (8)  To  the 
eighth  question,  "Was  there  any  want  of  ordinary  care  on  the  part 
of  the  defendant  which  caused  the  fire  which  burned  the  lumber?"  the 


708  BURDEN    OF   PROOF,   AND    PRESUMPTIONS.  No.  613. 

jury  answered  in  the  afifirmative ;  (9)  and  to  the  ninth  question,  in 
substance,  in  what  such  want  of  care  consisted,  the  jury  answered,  "Care- 
less inspection  of  netting  in  engine  No.  2."  .  .  .  The  plaintiffs  moved 
for  judgment  on  the  verdict,  and  the  defendant  moved  on  the  judge's 
minutes,  pleadings,  etc.,  among  other  things,  to  set  aside  the  sixth, 
eighth,  and  ninth  answers  and  findings  ol  the  verdict,  as  against  the 
undisputed  evidence  in  the  case,  and  for  judgment  on  the  special  ver- 
dict thus  corrected  and  the  undisputed  evidence,  on  the  ground  that 
such  evidence  showed  that  the  defendant  was  entitled  to  judgment. 
The  Court  denied  the  plaintiffs'  motion  and  entered  an  order  setting 
aside  the  answers  or  findings  in  the  special  verdict  to  the  sixth,  sev- 
enth, eighth,  and  ninth  questions,  as  being  contrary  to  the  uncontra- 
dicted evidence  in  the  case,  and  that  the  defendant  have  judgment 
upon  the  uncontradicted  evidence,  dismissing  the  plaintiffs'  complaint. 
Judgment  was  entered  in  favor  of  the  defendant,  pursuant  to  this 
order,  from  which  the  plaintiffs  appealed.  .  .  . 

PiNNEY,  J. :  "The  evidence  produced  on  the  part  of  the  plaintiff 
was  sufficient  to  go  to  the  jury,  to  show  that  the  fire  in  question  was 
set  by  the  defendant's  switch  engine,  presumably  by  sparks  or  cinders 
thrown  and  escaping  from  it;  but  it  does  not  follow  from  this  fact 
that  the  defendant  is  liable  for  the  consequences  that  ensued.  In  order 
to  charge  it  with  the  loss  of  the  plaintiffs'  lumber  the  fire  must  have 
been  caused  by  the  defendant's  negligence.  It  is  a  well-understood 
fact — so  much  so  that  Courts  may  properly  take  notice  of  it  as  a  mat- 
ter of  common  knowledge — that  no  means  or  device  that  human  in- 
genuity has  as  yet  been  able  to  produce  will  wholly  prevent  the 
emission  or  throwing  of  sparks  or  cinders  from  railway  locomotives. 
.  .  .  The  presumption,  therefore,  of  negligence,  or  the  want  of  proper 
equipment,  arising  from  the  mere  fact  of  fire  having  escaped,  is  not 
conclusive,  nor,  indeed,  a  very  strong  one,  but,  of  the  two,  rather 
weak  and  unsatisfactory.  It  is  indulged  in  merely  for  the  purpose  of 
putting  the  company  to  proof,  and  compelling  it  to  explain  and  show, 
with  a  reasonable  and  fair  degree  of  certainty,  not  by  the  highest 
and  most  clear  and  unmistakable  kind  of  evidence,  that  it  had  per- 
formed its  duty  in  this  particular.  Hence  evidence  showing  that  the 
engines  passing  over  a  road  were  properly  constructed  and  equipped, 
and  were  subjected  to  the  vigilant  and  careful  inspection  of  a  com- 
petent and  skillful  person  as  often  as  once  in  two  days,  and  found 
to  be  in  proper  order,  would  seem  to  satisfy  the  requirements  of  the 
rule.  The  effect  of  such  proof,  with  proof  of  proper  management, 
is  to  overcome  any  inference  of  negligence  on  the  part  of  the  de- 
fendant arising  from  the  mere  fact  that  sparks  and  cinders  did  escape 
and  communicate  fire,  to  the  plaintiffs'  injury.  In  the  present  case 
the  precise  manner  in  which  the  fire  occurred  was  not  observed  by 
any  one,  but  is  wholly  a  matter  of  inference ;  and  it  is  important  to 
note  that  the  case  differs,  in  this  respect,  materially  from  the  case  of 
Kur^   &   Huttenlocher   Ice   Co.    v.   Milwaukee  &   N.    R.    Co.,   84   Wis. 


No,  614.  I.      GENERAL  PRINCIPLES.  709 

I7i>  53  N.  W.  850,  and  Stacy  v.  Railway  Co.,  85  Wis.  225,  54  N.  W. 
779,  where  the  evidence  indicated  that  the  fire  in  question  was  caused, 
not  by  spaiks  or  cinders  thrown  from  the  engine,  but  from  coal 
and  cinders  dropped  on  the  track  under  circumstances  tending  to  show 
that  the  engine  was  not  properly  constructed  and  in  good  condition, 
or  negligence  in  the  management  of  it,  and  thus  furnishing  affirmative 
proof  of  negligence  which  would  require  the  submission  of  the  case 
to  the  jury,  to  determine  whether  the  evidence  introduced  by  the  com- 
pany to  overcome  the  presumption  mentioned  was,  in  all  material 
respects,  worthy  of  credit.  .  .  .  We  think  that,  the  evidence  produced 
by  the  defendant  in  relation  to  the  condition  of  the  engine,  its  man- 
agement, and  the  inspection  of  it  remaining  wholly  uncontradicted, 
the  case  falls  within  the  rule  on  which  this  Court  acted  in  Spaulding 
V.  Railway  Co.,  33  Wis.  591,  in  a  case  quite  in  point,  and  that  the 
Circuit  Court  properly  held  that  such  evidence  should  not  be  sub- 
mitted to  the  jury.  The  weight  and  effect  of  such  evidence,  and  the 
amount  and  character  of  proof  necessary  to  overcome  it,  are  ques- 
tions for  the  Court;  but,  in  case  of  a  conflict  of  testimony,  the  jury 
may  determine  what  facts  are  proved.  We  do  not  understand  that 
there  is  any  conflict  of  evidence  in  relation  to  the  facts  upon  which 
the  defendant  relies  to  rebut  the  inference  of  negligence  arising  from 
the  mere  fact  that  the  fire  was  communicated  from  sparks  and  cinders, 
escaping  from  the  defendant's  engine.  The  question  was  therefore 
wholly  a  question  of  law  for  the  Court  whether  the  proof  was  suffi- 
cient for  the  purpose  indicated.  ...  It  appears  to  us  that  the  evidence, 
much  of  which  has  been  set  forth,  was  amply  sufficient,  within  the 
rule,  to  rebut  all  inference  of  negligence  on  the  part  of  the  defendant, 
and  that  the  burden  of  establishing  such  negligence  on  its  part  as 
would  justify  a  verdict  in  their  favor  remaining  on  the  plaintiffs,  and 
no  such  evidence  having  been  produced,  judgment  was  properly  given 
for  the  defendant." 


EWING  V.  GOODE   (1897). 
/8  Fed.  442. 

Taft,  J.:  "In  this  case  the  petition  of  Nellie  Ewing,  the  plaintiff, 
alleges  that  she  employed  the  defendant,  Goode,  a  surgeon  and  oculist, 
to  cure  her  of  a  certain  malady  of  her  eye,  for  a  reward  to  be 
^  paid  therefor ;  that  defendant  entered  upon  such  employment, 
but  did  not  use  proper  care  and  skill  in  the  operating  on  the  eye 
of  plaintiff,  and  did  not  bestow  proper  attention  and  treatment  upon 
the  eye  after  the  operation,  causing  her  to  suffer  great  pain,  and  to 
lose  the  right  eye  entirely,  and  to  impair  the  sight  of  her  left  eye.  The 
answer  of  the  defendant  denies  unskillfulness  or  lack  of  attention 
on  his  part  and  any  injury  to  the  plaintiff  caused  thereby.  .  .  .  Before 
the   plaintiff   can    recover,    she    must    show   by    affirmative    evidence — 


710  BURDEN    OF   PROOF,    AND   PRESUMPTIONS.  No.  614. 

first,  that  defendant  was  unskilled  or  negligent;  and,  second,  that  his 
want  of  skill  or  care  caused  injury  to  the  plaintiff.  If  either  element 
is  lacking  in  her  proof,  she  has  presented  no  case  for  the  considera- 
tion of  the  jury.  .  .  .  The  preliminary  question  for  the  Court  to  settle 
in  this  case,  therefore,  is  whether  there  is  any  evidence  sufficient  in 
law  to  sustain  a  verdict  that  defendant  was  unskillful  or  negligent, 
and  that  his  want  of  skill  or  care  caused  injury.  In  the  Courts  of 
this  and  other  States  the  rule  is  that  if  the  party  having  the  burden 
of  proof  offer  a  mere  scintilla  of  evidence  to  support  each  necessary 
element  of  his  case,  however,  overwhelming  the  evidence  to  the  con- 
trary, the  Court  must  submit  the  issue  thus  made  to  the  jury,  with 
the  power  to  set  aside  the  verdict,  if  found  against  the  weight  of  the 
evidence.  In  the  Federal  Courts  this  is  not  the  rule.  According  to 
their  practice,  if  the  party  having  the  burden  submits  only  a  scintilla  of 
evidence  to  sustain  it,  the  Court,  instead  of  going  through  the  useless 
form  of  submitting  the  issue  to  the  jury,  and  correcting  error,  if  made, 
by  setting  aside  the  verdict,  may  in  the  first  instance  direct  the  jury 
to  return  a  verdict  for  the  defendant.  Hence  our  inquiry  is:  Does  the 
case  now  submitted  show  more  than  a  scintilla  of  evidence  tending 
to  show  want  of  skill  or  care  by  defendant,  or  injury  caused  thereby? 
.  .  .  The  condition  of  the  plaintiff  cannot  but  awaken  the  sympathy 
of  every  one,  but  I  must  hold  that  there  is  no  evidence  before  the 
Court  legally  sufficient  to  support  a  verdict  in  her  favor.  I  should 
deem  it  my  duty  without  hesitation  to  set  aside  a  verdict  for  the 
plaintiff  in  this  case  as  often  as  it  could  be  rendered,  and,  that 
being  true,  it  becomes  my  duty  to  direct  a  verdict  for  the  defendant."'^ 


BARABASZ  v.  KABAT  (1900). 
pi  Md.  53,  46  Atl.  337. 

Pearce,  J. :  "This  is  an  action  brought  by  the  appellees  against  the 
appellant  to  recover  damages  for  an  alleged  assault  and  battery  made 
upon  the  female  plaintiff  by  one  Joseph  Molis  while  in  the  dis- 
^■^^  charge  of  his  duties  and  in  the  course  of  his  employment  as  the 
servant  or  agent  of  the  appellant.  At  the  close  of  the  plaintiff's  testimony 
the  defendant  offered  eight  prayers,  by  each  of  which,  in  varying  form, 
the  Court  was  asked  to  withdraw  the  case  from  the  consideration  of 

I — Compare  the  following:  Brett,  J.,  would  justify  men  of  ordinary  reason  and 
in  Bridges  v.  R.  Co.  L.  R.  7  H.  L.  213  fairness  in  affirming  the  question  which 
(1874):  "It  is  the  duty  of  the  judge  to  the  plaintiff  is  bound  to  maintain?  It 
determine  whether  there  is  evidence  fit  may  be  said  that  this  is  so  indefinite  as 
to  be  left  to  the  jury  on  each  of  the  to  amount  to  no  rule,  that  it  leaves  the 
propositions  which  it  is  necessary  that  judge  after  all  to  say  whether  in  his  in- 
the  plaintiff  should  establish.  The  propo-  dividual  opinion  the  facts  in  evidence 
sition  seems  to  me  to  be  this:  Are  there  would  prove  the  proposition;  but  I  can- 
facts    in    evidence    which    if    unanswered  not  think  so." 


No.  615.  I.       GENERAL  PRINCIPLES,  711 

the  jury.  All  these  prayers  were  rejected  by  the  Court,  and  their  re- 
jection constitutes  the  first  exception.  After  the  rejection  of  these 
prayers,  the  defendant  proceeded  with  his  case,  and  introduced  a  num- 
ber of  witnesses  to  sustain  his  defense.  At  the  close  of  the  whole 
case,  prayers  were  offered  by  both  parties,  and  were  passed  upon  by 
the  Court,  but  are  not  embraced  in  the  record;  it  appearing  there- 
from that  the  defendant  waived  all  objection  to  the  ruling  on  all  these 
prayers  and  on  questions  of  evidence.  .  .  . 

"The  appellees  contend  that  though  there  may  have  been  error  in  the 
Court's  ruling  in  refusing  to  take  the  case  from  the  jury  at  the  conclu- 
sion of  the  plaintiff's  evidence,  such  error  was  waived  by  the  defendant  in 
proceeding  with  his  own  case,  and  cannot  be  reviewed  on  this  appeal. 
Prior  to  the  act  of  1894,  c.  516  (section  8-a,  art.  75,  of  the  Code),  this 
question  could  not  have  arisen  in  Baltimore  city,  because,  before  the  pas- 
sage of  that  act,  if  the  defendant  at  the  close  of  the  plaintiff's  testimony 
submitted  a  prayer  to  take  the  case  from  the  jury,  and  such  prayer  was 
refused,  the  defendant  could  not,  under  the  rules  of  the  courts  of 
Baltimore  city,  offer  testimony  in  defense,  and  the  case  went  to  the 
jury  on  the  plaintiff's  testimony,  just  as,  prior  to  the  act  of  1867,  c. 
388  (Code,  art.  75,  §8),  if  a  party  demurred  to  the  declaration  or  to 
a  plea  at  any  stage  of  the  case,  and  his  demurrer  was  overruled,  the 
other  party  was  entitled  to  judgment  on  the  demurrer,  unless  by 
leave  of  Court  the  demurrer  was  withdrawn  and  plea  was  filed  in  due 
course  according  to  the  stage  of  the  case.  This  was  so,  because  when 
the  party  elected,  by  his  demurrer,  to  rest  his  case  upon  an  issue  at 
law,  he  thereby  waived  the  right  to  have  an  issue  of  fact  (or,  to  speak 
more  accurately,  acknowledge  there  was  no  issue  of  fact),  so  long  as 
Ihe  issue  of  law  tendered  by  him  was  not,  by  leave  of  court,  with- 
drawn. This  reason  of  the  common  law  would  seem  to  be  equally 
applicable  and  controlling  in  the  case  of  a  prayer  offered  at  the  close 
of  plaintiff's  testimony  to  take  the  case  from  the  jury.  By  offering  such 
prayer  the  defendant  admitted  all  the  facts  established  by  the  plain- 
tiff's testimony,  and  rested  his  defense  upon  an  issue  of  law,  viz.  the 
sufficiency  of  those  facts  to  warrant  a  recovery. 

"But  Parliament  in  England  and  American  Legislatures  are  con- 
stantly modifying  the  rigor  of  the  common  law,  and  our  own  legis- 
lature, by  the  act  of  1867,  gave  to  the  party  demurring  to  a  declara- 
tion or  plea  the  right  to  plead  over  without  withdrawing  his  demurrer, 
and  expressly  provided  in  such  case  that  'upon  appeal  or  writ  of  error 
the  question  of  law  arising  upon  the  demurrer  should  be  decided  and 
determined  as  fully  to  every  intent  as  if  the  party  demurring  had  not 
pleaded  over.'  This  privilege  was  a  wise  and  salutary  one,  since  with- 
out it  only  partial  relief  would  have  been  afforded  against  the  evil  in- 
tended to  be  remedied,  \^'^ithout  it,  the  demurrant  would  have  lost  abso- 
lutely the  right  to  have  decided  the  issues  of  law,  upon  which  he  might 
be  correct,  and  the  only  benefit  he  would  have  secured  would  be  the 
chance  of  establishing  his  defense  upon  the  issue  of  fact  to  be  raised 


712 


BURDEN    OF   PROOF,   AND   PRESUMPTIONS. 


No.  615. 


by  plea.  In  other  words,  he  would  purchase  the  doubtful  result  of  an 
issue  of  fact  by  the  abandonment  of  the  uncertain  result  of  an  issue 
of  law.  But  under  the  operation  of  the  act  of  1867  he  enjoys  the  benefit 
of  a  defense  both  at  law  and  on  the  facts.  Thus,  equal  and  exact  jus- 
tice is  done  to  both  parties,  and  the  cost  and  delay  of  litigation  are 
greatly  reduced.  The  practice  of  offering  prayers  to  take  a  case  from 
the  jury  is  said  to  be  equivalent  to  a  demurrer  to  evidence,  and  when 
a  defendant,  at  the  close  of  the  plaintiff's  testimony,  submits  such  a 
prayer,  it  is  in  effect  a  motion  for  a  nonsuit,  which  is  the  practice  pre- 
vailing in  some  states  to-day.  The  only  difference  in  the  effect  of  a 
demurrer  to  evidence  and  a  motion  for  nonsuit  upon  plaintiff's  testi- 
mony, as  stated  by  Mr.  Justice  Gray  in  Central  Transp.  Co.  v.  Pull- 
man's Palace-Car  Co.,  139  U.  S.  39,  11  Sup.  Ct.  478,2  being  that  the 
judgment  on  the  former  is  a  final  determination  of  the  rights  of  the 
parties,  whereas  the  judgment  on  the  latter  is  in  favor  of  plaintiff, 
the  case  must  be  submitted  to  the  jury;  and,  if  in  favor  of  defendant, 
it  is  no  bar  to  a  new  action.  The  act  of  1894  enacted  that  where  the 
defendant  offers  such  a  prayer  at  the  close  of  the  plaintiff's  evidence, 
and  it  is  rejected,  'the  defendant  shall  not  be  precluded  from  offering 
evidence  of  defense,  but  any  defendant  in  any  such  action  may  offer 
evidence  of  defense  as  fully  and  to  the  same  extent  as  though  such 
prayer  had  not  been  offered.'  It  does  not,  however,  provide,  as  the 
act  of  1867  did  in  reference  to  its  subject-matter,  that  'upon  appeal  or 
writ  of  error  the  question  of  law  arising  upon  such  rejected  prayer 
shall  be  decided  and  determined  as  fully  to  every  intent  as  if  no  evi- 
dence in  defense  had  been  offered.'  We  think  there  was  a  sound  rea- 
son  for   not  so  providing,  because  the  defendant's  evidence,   being  in 


2 — Gray,  J.,  in  Central  Transportation 
Co.  V.  Pullman's  Palace  Car  Co.  (1890), 
cited  supra:  "[Under  a  State  statute  al- 
lowing a  court  to  enter  a  non-suit  with- 
out the  plaintiff's  consent,  and  granting 
the  plaintiff  a  writ  of  error  therefor,] 
the  defendant's  motion  for  a  nonsuit  is 
equivalent  to  a  demurrer  to  evidence, 
differing  only  in  the  judgment  thereon 
not  being  a  iinal  determination  of  the 
rights  of  the  parties,  for  if  it  is  in  favor 
of  the  plaintiff  the  case  must  be  sub- 
mitted to  the  jury,  and  if  in  favor  of 
the  defendant  it  is  no  bar  to  a  new  ac- 
tion. It  is  true  that  a  plaintiff,  who 
appears  by  the  record  to  have  voluntarily 
become  nonsuit,  cannot  sue  out  a  writ 
of  error.  But  in  the  case  of  a  com- 
pulsory nonsuit  it  is  otherwise;  and  a 
plaintiff,  against  whom  a  judgment  of 
nonsuit  has  been  rendered  without  his 
consent  and  against  his  objection,  is  en- 
titled to  relief  by  writ  of  error.  .  .  . 
The  difference  between  a  motion  to  order 
a    nonsuit    of    the    plaintiff    and    a    motion 


to  direct  a  verdict  for  the  defendant  is, 
as  observed  by  Mr.  Justice  Field,  de- 
livering a  recent  opinion  of  this  court, 
'rather  a  matter  of  form  than  of  sub- 
stance except  [that]  in  the  case  of  a 
nonsuit  a  new  action  may  be  brought, 
whereas  in  the  case  of  a  verdict  the  action 
is  ended,  unless  a  new  trial  be  granted, 
either  upon  motion  or  upon  appeal.'  .  .  . 
It  is  doubtless  within  the  authority  of  the 
presiding  judge,  and  is  often  more  con- 
venient, in  order  to  prevent  the  case 
from  being  brought  up  in  such  a  form 
that  the  judgment  of  the  Court  of  last 
resort  will  not  finally  determine  the 
rights  of  the  parties,  to  adopt  the  course 
of  directing  a  verdict  for  the  defendant 
and  entering  judgment  thereon.  But  the 
judgment  of  nonsuit,  being  a  final  judg- 
ment disposing  of  the  particular  case, 
and  rendered  upon  a  ruling  in  matter  of 
law  duly  excepted  to  by  the  plaintiff,  is 
subject  to  be  reviewed  in  this  court  by 
writ    of    error." 


No.  616.  I,       GENERAL  PRINCIPLES.  713 

by  his  own  deliberate  election,  should  be  available  as  well  for  the  plain- 
tiff as  for  the  defendant,  since  it  not  unfrequently  happens  that  the  de- 
fendant, in  so  electing,  supplies  the  deficiency  of  plaintiff's  testimony ; 
and  if  the  defendant  is  still  of  opinion  that  upon  the  whole  testimony, 
which  he  has  himself  invoked,  there  is  no  legally  suflScient  evidence  to 
vfarrant  a  recovery,  he  may  renew  his  prayer  to  take  the  case  from 
the  jury,  and  so  is  not  deprived  of  his  right  to  have  determined  upon 
the  whole  case,  at  that  stage  to  which  his  election  has  brought  the  case, 
the  question  of  law  raised  by  the  renewed  prayer  to  take  the  case  from 
the  jury.  If,  on  the  other  hand,  he  is  of  opinion  that  he  can  no  longer 
sucessfully  rely  upon  such  prayer,  by  reason  of  any  additional  evidence 
brought  into  the  case,  we  can  perceive  no  reason  why  he  should  be  per- 
mitted to  resort  again  to  a  position  which  would  operate  to  exclude  his 
own  testimony  making  for  the  plaintiff. 

"The  question  here  raised  has  never  been  presented  in  this  Court, 
but,  for  the  reasons  we  have  given,  we  think  the  contention  of  the 
appellees  is  logical  and  correct.  It  would  certainly  produce  a  failure 
of  justice  if  a  verdict  of  a  jury,  rendered  upon  the  evidence  of  both 
parties,  and  upon  instructions  at  the  close  of  the  case,  to  the  granting 
or  refusing  of  which  there  was  no  exception,  should  be  set  aside  upon 
an  alleged  erroneous  ruling  upon  the  plaintiff's  evidence  only ;  and  it 
would  be  trifling  with  the  purposes  for  which  courts  of  justice  are  cre- 
ated to  require  the  review  of  an  error  which,  if  declared,  would  not 
justify  a  reversal." 


JOLIET,  AURORA  &  NORTHERN  R.  CO.  v.  VELIE    (1892). 
140  III.  5p,  2p  N.  E.  /06. 

Magruder,  C.  J. :  "This  is  an  action  on  the  case  begun  on  April 
23,  1888,  by  the  appellee  against  the  appellant  company  in  the  Circuit 
Court  of  Kane  County  to  recover  damages  for  a  personal  injury, 
"•*^"  which  resulted  in  the  amputation  of  one  of  the  appellee's  legs 
and  the  mangling  of  the  other,  in  tearing  his  ribs  from  the  breast 
bone,  in  inflicting  internal  injuries  and  in  completing  shattering  his 
nervous  system.  The  plea  was  not  guilty.  The  first  trial  resulted  in 
a  verdict  in  favor  of  the  plaintiff  for  $15,000.00.  A  new  trial  was  grant- 
ed. The  second  trial  has  resulted  in  verdict  and  judgment  in  favor 
of  the  plaintiff  for  $14,000.00.  This  judgment  has  been  affirmed  by  the 
'Appellate  Court,  and  the  judgment  of  the  latter  Court  is  brought  here 
for  review  by  appeal.  .  .  .  After  the  plaintiff  below  had  introduced 
his  evidence  and  rested,  the  defendant — the  appellant  here — moved  to 
exclude  the  plaintiff's  evidence.  This  motion  was  overruled,  and  excep- 
tion was  taken.  The  action  of  the  trial  Court  in  thus  overruling  the 
motion  of  the  defendant  to  exclude  all  of  the  plaintiff's  evidence,  so 
made  at  the  close  of  the  plaintiff's  evidence,  and  not  afterwards,  is  the 


714  BURDEN    OF   PROOF,    AND    PRESUMPTIONS.  No.  616. 

only  error  now  insisted  upon  by  appellant's  counsel,  except  the  claim 
that  the  damages  are  excessive  which  will  be  noticed  hereafter. 

"A  motion  to  exclude  the  evidence  operates  as  a  demurrer  to  the 
evidence.  Where  the  defendant  demurs  to  the  plaintiff's  evidence,  he 
must  be  held  to  admit  not  only  all  that  the  plaintiff's  testimony  proves, 
but  all  that  it  tends  to  prove.  The  demurrer  not  only  admits  the  truth 
of  the  testimony  demurred  to,  but  all  the  conclusions  of  fact  which 
a  jury  may  fairly  draw  therefrom.  The  testimony  is  to  be  taken  most 
strongly  against  the  party  demurring,  and  whatever  inferences  a  jury 
would  be  entitled  to  draw  the  court  ought  to  draw.  The  object  of  the 
demurrer  is  to  refer  to  the  Court  the  law  arising  from  facts.  .  .  . 
Hence,  if  there  is  evidence  tending  to  prove  the  issues  in  favor  of  the 
plaintiff,  the  judgment  must  be  in  his  favor,  or,  what  amounts  to 
the  same  thing  under  the  more  recent  practice,  the  motion  to  exclude 
must  be  overruled.  If,  therefore,  the  record  in  this  case  was  in  such 
shape  as  to  present  for  our  consideration  the  question  of  law  whether 
the  evidence,  that  had  been  introduced  by  the  plaintiff  below  when  he 
rested  his  case,  was  or  was  not  sufficient  to  justify  a  recovery,  or  estab- 
lish a  cause  of  action,  we  would  be  obliged  to  examine  such  evidence 
in  order  to  determine  the  question  thus  presented. 

"But  we  do  not  think  that  the  appellant  is  in  a  position  to  urge 
before  this  Court,  that  the  trial  Court  erred  in  refjdsing  to  sustain  its 
motion  to  exclude  the  evidence  of  the  plaintiff  below.  When  the  motion 
was  overruled  the  defendant  below  did  not  stand  by  the  motion ;  on  the 
contrary,  it  proceeded  to  introduce  testimony  to  contradict  the  proofs 
of  the  plaintiff;  and,  after  the  introduction  of  its  own  testimony,  it  did 
not  renew  its  motion  to  exclude,  nor  did  it  ask  the  court  to  instruct 
the  jury  to  find  for  the  defendant,  but  allowed  the  case  to  go  to  the 
jury  under  instructions  framed  upon  the  theory  that  there  was  such  a 
conflict  in  the  evidence  as  to  justify  the  jury  in  passing  upon  it.  Where 
a  defendant,  whose  motion  to  exclude  plaintiff's  evidence,  made  as  soon 
as  plaintiff  rests,  is  overruled,  fails  to  stand  by  such  motion,  or  to  renew 
it  when  all  the  testimony  is  in,  or  to  request  that  the  jury  be  instructed 
to  find  for  the  defendant,  but  introduces  testimony  of  his  own  to  con- 
tradict the  case  made  by  the  plaintiff,  and  requests  that  the  jury  be 
instructed  to  pass  upon  the  issues  involved  and  to  determine  them  ac- 
cording to  the  preponderance  of  the  evidence,  he  thereby  waives  his 
right  to  object  to  the  action  of  the  Court  in  overruling  his  motion,  and 
is  estopped  from  assigning  such  action  as  error  in  a  court  of  review. 

"This  conclusion  necessarily  follows  from  the  observations  already 
made  upon  the  nature  of  such  a  motion,  which  operates  as  a  demurrer 
to  the  evidence.  When  a  defendant  demurs  to  a  declaration  and  his 
demurrer  is  overruled,  he  has  two  courses  before  him.  He  can  either 
stand  by  his  demurrer  and  suffer  judgment  to  go  against  him,  trust- 
ing to  the  upper  Court  to  sustain  his  position,  or  he  can  plead  to  the 
declaration  and  go  to  trial.  If  he  does  the  latter,  he  loses  any  rights 
which  he  might  have  had  under  his  demurrer  if  he  had  stood  by  it.    We 


No.   616.  I.      GENERAL  PRINCIPLES.  715 

see  no  reason  why  the  same  rule  should  not  apply  in  the  case  of  a 
motion  by  the  defendant  to  exclude  the  plaintiff's  evidence,  when  such 
motion  is  made  as  soon  as  the  plaintiff  rests  his  case.  A  motion  of 
this  kind  is  a  substitute  for  the  old  practice  of  filing  a  demurrer  to 
the  evidence,  which  set  out  all  the  facts  admitted,  and  was  expressed 
in  the  formal  language  of  the  ordinary  demurrer.  The  plaintiff  then 
joined  in  the  demurrer,  or  refused  to  join  therein,  according  to  the 
ruling  of  the  court.  Inasmuch  as  the  demurrer  admits  all  the  facts 
stated  in  it  to  be  true,  and  admits  also  all  the  inferences  which  can  be 
properly  drawn  from  the  facts,  and  merely  claims  that  the  testimony  is 
not  sufficient  in  law  to  enable  the  plaintiff*  to  maintain  his  action,  the 
defendant  necessarily  withdraws  his  admissions  when  he  neglects  to 
stand  by  his  demurrer  after  it  is  overruled,  and  proceeds  to  introduce 
witnesses  to  contradict  the  very  evidence  which  he  has  just  admitted 
to  be  true.  The  action  of  the  Court  in  ruling  upon  the  demurrer  to  the 
evidence  is  based  upon  defendant's  admission  that  the  facts  estab- 
lished by  the  evidence  are  true.  When  the  defendant  no  longer  admits 
such  facts  to  be  true  but  tries  to  prove  that  they  are  false,  he  ought 
to  be  held  to  have  waived  any  error  based  upon  the  admissions  thus 
withdrawn.  .  .  .  When  the  testimony  of  the  defendant  is  introduced, 
the  case  made  by  the  plaintiff  may  have  been  strengthened,  and  its  de- 
fects, if  any  existed,  may  have  been  cured.  Very  often  the  cross-exam- 
ination of  the  defendant's  witnesses  brings  out  facts  favorable  to  the 
plaintiff's  cause  of  action  which  the  latter  could  not  otherwise  obtain. 
When  all  the  evidence  is  in  on  both  sides,  an  entirely  different  case  may 
be  presented  from  that  which  existed  when  the  plaintiff  rested.  Even 
though  a  motion  to  exclude  plaintiff's  evidence  made  at  the  close  of 
his  case  may  have  been  improperly  overruled,  yet  the  evidence  on  both 
sides  when  considered  all  together  may  show  so  clearly,  that  the  cause 
depends  upon  the  effect  or  weight  of  testimony,  as  not  only  to  justify 
but  to  require  the  jury  to  pass  upon  it.  Would  it  be  right  for  this  Court 
to  reverse  a  judgment  for  error  in  overruling  such  a  motion,  if  it  could 
plainly  see  that  the  case  was  one  for  the  jury  in  view  of  all  the  testi- 
mony presented  by  both  sides,  and  that  it  was  properly  submitted  to 
the  jury  under  instructions  applicable  to  a  controverted  state  of  facts? 
We  think  not. 

"If  the  defendant  in  this  case  felt  confidence  in  the  position,  that 
the  evidence  introduced  by  the  plaintiff  established  no  cause  of  action, 
it  should  have  stood  by  its  motion.  .  .  .  What  matters  it  that  it  would 
have  been  wrong  to  submit  the  case  to  the  jury  upon  the  plaintiff's 
evidence  alone,  if  it  was  right  to  submit  it  upon  the  plaintiff's  evidence 
and  the  defendant's  evidence  together?  .  .  .  They  [defendant's  counsel] 
nowhere  claim,  or  ask  us  to  hold,  that  the  case  was  not  properly  sub- 
mitted to  the  jury  upon  all  the  evidence  presented  on  both  sides.  Their 
sole  contention  is,  that  the  plaintiff  when  he  rested  had  not  made  a  case, 
and  that  the  trial  court  erred  in  not  sustaining  the  motion  then  made 
to  exclude  plaintiff's  evidence  without  reference  to  the  bearing,  or  effect 


716  BURDEN    OF   PROOF,   AND   PRESUMPTIONS.  No.   616. 

on  the  issues,  of  the  evidence  subsequently  introduced;  and  that,  for 
this  alleged  error  alone,  we  must  reverse  the  cause  irrespective  of  any- 
thing that  occurred  after  such  motion  was  overruled,  and  no  matter 
upon  what  theory  or  upon  what  kind  of  instructions  the  case  was  finally 
submitted.    We  are  unable  to  concur  in  this  view."^ 


COMMONWEALTH  v.  WEBSTER   (1850). 
5  Cush.  295,  320. 

The  facts  of  this  case  have  been  stated  ante,  in  No.  17. 

Shaw,  C.  J.,  charging  the  jury:     "Another  rule  is,  that  the  circum- 
stances  taken    together    should   be   of   a   conclusive   nature   and 
61 7 

tendency,  leading  on  the  whole  to  a  satisfactory  conclusion,  and 

producing  in  effect  a  reasonable  and  moral  certainty,  that  the  accused, 
and  no  one  else,  committed  the  offence  charged.  .  .  .  The  evidence  .  .  . 
in  case  of  homicide,  must  not  only  prove  a  death  by  violence,  but  must,  to 
a  reasonable  extent,  exclude  the  hypothesis  of  suicide,  and  a  death  by  the 
act  of  any  other  person.  This  is  to  be  proved  beyond  reasonable  doubt. 
"Then,  what  is  reasonable  doubt?  It  is  a  term  often  used,  probably 
pretty  well  understood,  but  not  easily  defined.  It  is  not  mere  possible 
doubt;  because  everything  relating  to  human  affairs,  and  depending 
on  moral  evidence,  is  open  to  some  possible  or  imaginary  doubt.  It 
is  that  state  of  the  case,  which,  after  the  entire  comparison  and  con- 
sideration of  all  the  evidence,  leaves  the  minds  of  jurors  in  that 
condition  that  they  cannot  say  they  feel  an  abiding  conviction,  to  a 
moral  certainty,  of  the  truth  of  the  charge.  The  burden  of  proof  is 
upon  the  prosecutor.  All  the  presumptions  of  law  independent  of  evi- 
dence are  in  favor  of  innocence ;  and  every  person  is  presumed  to  be 
innocent  until  he  is  proved  guilty.  If  upon  such  proof  there  is  reason- 
able doubt  remaining,  the  accused  is  entitled  to  the  benefit  of  it  by  an 
acquittal.  For  it  is  not  sufficient  to  establish  a  probability,  though  a 
strong  one  arising  from  the  doctrine  of  chances,  that  the  fact  charged 
is  more  likely  to  be  true  than  the  contrary;  but  the  evidence  must  estab- 
lish the  truth  of  the  fact  to  a  reasonable  and  moral  certainty;  a  cer- 
tainty that  convinces  and  directs  the  understanding,  and  satisfies 
the  reason  and  judgment,  of  those  who  are  bound  to  act  conscientiously 
upon  it.    This  we  take  to  be  proof  beyond  reasonable  doubt." 


3 — Gray  J.,  in   Columbia   &c.   R.   R.   Co.  plaintiff   is   not   entitled   to   recover  cannot 

V.    Hawthorne,     144    U.    S.    202,    12    Sup.  be    made    by    the    defendant,    as    a    matter 

591    (1892):      "The    question    of    the    suf-  of  right,   unless  at  the  close  of  the  whole 

ficiency    of    the    evidence    for    the    plaintiff  evidence;    and    that    if    the    defendant,    at 

to    support    his    action    cannot    be    consid-  the    close    of   the    plaintiff's    evidence,    and 

ered    by    this    court.       It    has     repeatedly  without  resting  his  own  case,  requests  an(? 

been    decided    that    a    request    for    a    ruling  is    refused     such     a     ruling,     the     refusal 

that     upon     the     evidence     introduced     the  cannot    be    assigned    for    error." 


No.  618.  I.       GENERAL  PRINCIPLES.  717 

BUEL  V.  STATE    (1899). 
104  Wis.  132,  80  N.  W.  78. 

Marshall,    J.,    commenting    on    the    phrase    "reasonable    doubt": 

"Much  discussion  is   found   in  the  adjudged  cases  as  to  whether  any 

attempt  to   explain  it  does   not  tend  to   confuse  rather  than  to 
fil  s 
"•^^      enlighten  the  jury.     It  is  said  that  scholastic  attempts  to  explain 

the  meaning  of  such  words,  which  are  more  easily  understood  than 
explained,  are  liable  to  lead  such  men  as  commonly  make  up  our  juries 
to  think  that  the  ordinary  processes  of  reasoning,  by  which  they  are 
accustomed  to  come  to  conclusions  in  the  ordinary  affairs  of  life,  are 
not  suitable  to  the  jury  room  in  a  criminal  case,  but  that  some  other 
process  of  reasoning  is  to  be  adopted  which  they  are  to  gather  from 
the  language  of  the  trial  judge,  and  that  they  are  thereby  really  weakened 
in  their  ability  to  come  to  a  just  conclusion ;  that  it  would  be  better 
to  leave  them  to  exercise  their  own  intelligence  in  regard  to  language 
so  plain  that  it  is  not  easy  to  make  it  plainer  by  explanation.  Mr.  Jus- 
tice Newman  said,  in  Hoffman  v.  State  :*  'It  needs  be  a  skillful  definer 
who  will  make  the  meaning  of  the  term  ("beyond  a  reasonable  doubt") 
more  clear  by  the  multiplication  of  words,'  while  the  writer  expressed 
the  view,  in  Emery  v.  State,^  that  the  due  administration  of  justice  in 
many  cases  requires  a  careful  explanation  of  the  term  to  be  given  to 
the  jury,  and  that  without  it  justice  is  liable  at  times,  through  igno- 
rance, to  be  defeated,  and  the  efficacy  of  the  law  to  protect  society,  and 
its  administration  by  courts,  discredited.  In  State  v.  Sauer,®  Mitchell, 
J.,  expressed  the  opinion  that  'most  attempts  at  explaining  the  meaning 
of  a  "reasonable  doubt"  are  made  by  the  use  of  expressions  that  them- 
selves need  explanation  more  than  the  term  sought  to  be  explained  by 
them,  and  that  the  better  way  is  to  omit  such  attempts,  but  that  if  such 
attempts  be  indulged  in  it  would  be  better  to  adopt  those  definitions  that 
have  received  general  approval  by  Courts.'  In  People  v.  Stubenvoll,'' 
Champlin,  J.,  speaking  for  all  the  members  of  the  court,  said:  'We 
do  not  think  that  the  phrase  "reasonable  doubt"  is  of  such  unknown  or 
uncommon  signification  that  an  exposition  by  the  trial  judge  is  called 
for.  Language  that  is  within  the  comprehension  of  persons  of  ordinary 
intelligence  can  seldom  be  made  plainer  by  further  defining  or  refining. 
All  persons  who  possess  the  qualifications  for  jurors  know  that  a  doubt 
of  the  guilt  of  the  accused,  honestly  entertained,  is  a  reasonable  doubt.' 
In  Judge  Thompson's  work  on  Trials,^  it  is  said  that  'all  the  definitions 
are  little  more  than  metaphysical  paraphrases  of  an  expression  invented 
by  the  common-law  judges  for  the  very  reason  that  it  was  capable  of 
being  understood  and  applied  by  men  in  the  jury  box.'  Many  more 
instances  might  be  given  where  judges  of  appellate  courts  and  text  writ- 

4 — 97  Wis.  576,  73  N.  \V.  52.  7 — 62  Mich.  329,  28  N.  W.  883. 

5 — loi  Wis.  27,  78  X.  W.  145.  8 — II,  §  2469. 

6—38  Minn.  438  X.  W.  355. 


718  BURDEN    OF   PROOF,    AND   PRESUMPTIONS.  No.  618. 

ers  have  discouraged  all  attempts  at  explanation  of  what  is  a  reasonable 
doubt,  from  the  standpoint  of  a  juror.  Nevertheless  the  fact  remains 
that  trial  judges,  at  least  in  important  criminal  trials^  generally  take 
great  pains  to  explain  the  term  so  that  the  commonest  understanding 
can  grasp  its  meaning.  The  practice  in  that  regard  has  grown  up 
from  frequent  observations  of  the  necessity  of  it.  It  is  considered  here 
that  it  is  proper  in  all  cases  to  make  a  careful  explanation  of  the  term, 
and  that  where  the  prosecution  relies  wholly  on  circumstantial  evidence 
it  is  the  better  practice  to  do  so,  taking  the  utmost  care,  however,  to 
use  only  expressions  that  have  been  approved  particularly  by  this 
Court."» 


ELLIS  v.  BUZZELL    (1872). 
60  Me.  20Q,  21^. 

Barrows,  J. :  "The  plaintiff  claims  to  recover  damages  of  the  de- 
fendant, because,  he  says,  the  defendant  falsely  charged  him  with  the 

commission   of  the   crime   of  adultery.    The  defendant   says   the 
fil  *J 
^  ^      plaintiff  ought  not  to  recover  damages,  because  the  accusation  was 

not  false,  but  true,  and  he  testified  that  he  saw  the  plaintiff  in  the  act  of 
adultery  with  a  certain  woman.  The  plaintiff  denies  this  in  his  testimony, 
and  produces  the  deposition  of  the  woman,  who  denies  it  also.  Hereupon 
he  requests  the  judge  to  instruct  the  jury  that  the  defendant  in  order  to 
maintain  the  defense  must  prove  the  act  of  adultery  upon  him  beyond 
a  reasonable  doubt,  the  same  as  if  he  was  on  trial  for  the  commission  of 
a  crime.  The  judge  refused  so  to  instruct,  and,  on  the  contrary,  in- 
structed the  jury  that  if  the  defendant  had  made  out  the  truth  of  the 
charge  against  the  plaintiff  by  a  preponderance  of  testimony,  it  was 
sufficient  to  erttitle  him  to  a  verdict;  and  that  proof  of  the  truth  of  the 
statements  made  by  the  defendant  would  be  a  complete  justification  for 
uttering  them.  .  .  . 

"The  burden,  however,  of  proving  that  what  he  has  said  is  true,  rests 
rightfully  enough  upon  the  defendant,  not  only  because  he  holds  the 
affirmative  according  to  the  pleadings,  but  because  of  the  presumption  of 
innocence.  This  presumption,  as  well  as  whatever  testimony  the  plain- 
tiff may  offer  to  repel  the  charge,  the  defendant  must  be  prepared  to 
overcome  by  evidence.  But  when  he  has  done  this  by  that  measure 
and  quantity  of  evidence  which  is  ordinarily  held  sufficient  to  entitle 
a  party  upon  whom  the  burden  of  proof  rests,  to  a  verdict  in  his  favor 

9 — Compare    the    following:       1901,    Len-  use,    and    the    jury   could   understand    them 

ert   V.    State,    —    Tex.    Cr.    — ,    63    S.    W.  as  easily  as  the  Court,  and  the  Court  had 

563:        "The   jury   sent   word   to   the  Court  a    reasonable    doubt    as    to    whether    or    not 

.  .  .  that      they      desired      an      additional  he    could    under    the    law    charge    them    as 

charge    upon    the    meaning    of    'reasonable  to    their    meaning.'    We    see    no    error    in 

doubt.'  .  .  .  Thereupon   the   Court  told  the  this    action    of    the    trial    Court    calculated 

jury  verbally  'that  the  two  words  "rea-  to  injure  the  rights  of  the  appellants." 
sonable    doubt"     were    words    of    common 


No.  619.  I.      GENERAL  PRINCIPLES.  719 

in  a  civil  case,  shall  he  be  required  to  go  further,  and  in  order  to  save 
himself  from  being  mulcted  in  damages  for  the  benefit  of  the  plain- 
tiff, free  the  minds  of  the  jury  from  every  reasonable  doubt  of  the  plain- 
tiff's guilt,  as  the  State  must  in  the  trial  of  a  criminal  prosecution? 

"We  see  no  good  reason  for  thus  confounding  the  distinction  vi^hich 
is  made  by  the  best  text-writers  on  evidence,  between  civil  and  criminal 
cases  with  regard  to  the  degree  of  assurance  which  must  be  given  to 
the  jury  as  the  basis  of  a  verdict.  ...  It  is  true,  that  this  distinction 
has  heretofore  been  carried  into  civil  cases  and  applied  to  suits  in  which 
it  incidentally  became  necessary  to  determine,  in  order  to  settle  the 
issue  which  the  parties  were  litigating,  whether  one  of  the  parties  had 
committed  an  offense  against  the  criminal  law.  Hence  have  arisen  in 
these  actions  for  defamation  among  others,  a  series  of  decisions  which, 
if  juries  had  acted  according  to  their  tenor,  would  have  been  productive 
not  unfrequently  of  very  unjust  results.  Practically  we  do  not  con- 
sider the  form  of  expression  used  in  the  instructions  to  juries  in  cases 
of  this  description  as  very  likely  to  change  the  result.  We  do  not  be- 
lieve, if  the  jury  in  the  present  case  found  themselves  inclined  to 
believe  upon  the  whole  evidence  that  the  plaintiff  was  verily  guilty,  as 
the  defendant  had  said,  that  they  would  have  proceeded  to  assess  dam- 
ages in  his  favor,  because  he  might  have  started  a  reasonable  doubt  in 
their  minds  whether  he  ought  to  be  convicted  of  the  crime  and  sent 
to  the  State  prison,  upon  that  evidence,  even  had  they  been  so  instructed.. 
The  practical  effect  of  such  an  instruction  would  probably  have  been 
to  eliminate  the  doubt  from  the  minds  of  the  jury,  not  to  change  the 
result  at  which  they  arrived.  But  we  think  it  best  to  recognize  what 
has  been  justly  said  to  be  'well  understood,  that  a  jury  will  not  require 
so  strong  proof  to  maintain  a  civil  action  as  to  convict  of  a  crime ;' 
and  to  draw  the  line  between  the  cases  where  full  proof  beyond  a 
reasonable  doubt  shall  be  required  and  those  where  a  less  degree  of 
assurance  may  serve  as  the  basis  of  a  verdict,  where  the  juror  instinct- 
ively places  it, — making  it  to  depend  rather  upon  the  results  which  are 
to  follow  the  decision,  than  upon  a  philosophical  analysis  of  the  char- 
acter of  the  issue.  ...  A  greater  degree  of  caution  in  coming  to  a 
conclusion  should  be  practiced  to  guard  life  or  liberty  against  the  con- 
sequences of  a  mistake  always  painful,  and  possibly  irreparable,  than 
is  necessary  in  civil  cases,  where,  as  above  remarked,  the  issue  must 
be  settled  in  accordance  with  one  view  or  the  other,  and  the  verdict  is 
followed  with  positive  results  to  one  party  or  the  other,  but  not  of  so 
serious  a  nature."*" 

10 — Compare     the    authorities     cited     in   W.,    {    2498. 


720  BOOK  II.  No.  620. 


TITLE  II. 

PRESUMPTIONS  IN  SPECIFIC  ISSUES. 

SUTTON  V.  SADLER    (1857). 
3  C.  B.  N.  S.  87. 

Ejectment;  the  issue  was  as  to  the  competency  of  William  Walter 
Sutton  to  make  a  will.  The  defendant  admitted  that  the  plaintiff  was 
heir-at-law  of  the  person  last  seised,  and  claimed  as  devisee, 
**  "  and  insisted  that  he  was  entitled  to  begin,  which  was  conceded. 
A  will  was  then  produced;  and,  after  proving  the  execution  of  it,  as 
required  by  the  statute  7  W.  4  &  i  Vict.  c.  26,  the  defendant's  counsel 
called  witnesses  to  prove  the  testator's  competency.  Evidence  was 
then  given  on  the  part  of  the  plaintiff,  to  impeach  the  competency  of 
the  testator;  and  it  was  sought  to  be  shown  that  he  had  been  incompe- 
tent a  nativitate,  and  also  that,  if  ever  capable  of  making  a  will,  he 
had  from  habitual  and  incessant  drunkenness  rendered  himself  incap- 
able. The  learned  Baron,  in  leaving  the  case  to  the  jury,  told  them 
that  the  heir-at-law  was  entitled  to  recover  unless  a  will  was  proved; 
but  that,  when  a  will  was  produced,  and  the  execution  of  it  proved, 
the  law  presumed  sanity,  and  therefore  the  burthen  of  proof  was 
shifted;  and  that  the  devisee  must  prevail,  unless  the  heir-at-law  estab- 
lished the  incompetency  of  the  testator;  and  that,  if  the  evidence  was 
such  as  to  make  it  a  measuring  cast,  and  leave  them  in  doubt,  they 
ought  to  find  for  the  defendant.  The  jury  returned  a  verdict  for  the 
defendant.  Grove,  Q.  C,  obtained  a  rule  nisi  for  a  new  trial,  on  the 
grounds  of  misdirection. 

Cresswell,  J. :  "This  was  an  ejectment  tried  before  Bramwell, 
B.,  at  the  last  Chester  Assizes.  The  defendant  admitted  that  the  plain- 
tiff was  heir-at-law  of  the  person  last  seised,  and  claimed  as  devisee, 
and  insisted  upon  the  right  to  begin,  which  was  granted.  His  counsel 
then  produced  a  will,  and,  after  proving  the  execution  of  it,  as  re- 
quired by  the  statute  7  W.  4  &  I  Vict.  c.  26,  called  witnesses  to  prove 
the  competency  of  the  testator.  The  plaintiff  then  gave  evidence  to 
impeach  his  competency,  and  endeavored  to  show  that  he  had  been 
incompetent  a  nativitate.  The  learned  judge  in  summing  up,  told  the 
jury  that  the  heir-at-law  was  entitled  to  recover  unless  a  will  was 
proved ;  but  that,  when  a  will  was  produced,  and  the  execution  of  it 
proved,  'the  law  presumed  sanity,  and  therefore  the  burthen  of  proof 
was  shifted;'  and  that  the  devisee  must  prevail,  unless  the  heir-at-law 
established  the  incompetency  of  the  testator;  and  that,  if  the  evidence 
was   such  as  to  make  it  a  measuring  cast,   and  leave  them  in  doubt, 


No.  620.  II.       SPECIFIC   PRESUMPTIONS.  721 

they  ought  to  find  for  the  defendant.  A  verdict  having  been  found 
for  the  defendant,  a  rule  nisi  for  a  new  trial  was  granted  in  Easter 
Term,  it  being  alleged  that  the  learned  judge  misdirected  the  jury. 
"Some  very  valuable  observations  on  this  subject  are  to  be  found  in 
the  judgment  of  Lord  Brougham  in  Waring  v.  Waring,  6  Moore's  P. 
C  355 :  'The  burthen  of  proof,'  says  his  Lordship,  'often  shifts  about 
in  the  progress  of  the  cause,  accordingly  as  the  successive  steps  of  the 
inquiry,  by  leading  to  inferences  decisive  until  rebutted,  cast  on  the 
one  or  the  other  party  the  necessity  of  protecting  himself  from  the 
consequences  of  such  inferences.  Nor  can  anything  be  less  profitable 
as  a  guide  to  our  ultimate  judgment,  than  the  assertion,  which  all 
parties  are  so  ready  to  put  forward  severally,  that,  in  the  question 
under  consideration,  the  proof  is  on  the  other  side.  Thus,  no  doubt, 
he  who  propounds  a  latter  will  undertakes  to  satisfy  the  court  of  pro- 
bate that  the  testator  made  it,  and  was  of  sound  and  disposing  mind. 
But  very  slight  proof  of  this,  where  the  factum  is  regular,  will  suffice: 
and  they  who  impeach  the  instrument  must  produce  their  proofs,  should 
the  party  actor  (the  party  propounding)  choose  to  rest  satisfied  with 
his  prima  facie  case  after  an  issue  tendered  against  him.  In  this  case, 
the  proof  has  shifted  to  the  impugner;  but  his  case  may  easily  shift 
it  back  again.'  The  result  must  be  the  same  where  the  party  propound- 
ing does  not  rely  on  a  prima  facie  case,  but  gives  the  whole  of  his 
proofs  in  the  first  instance.  The  onus  remains  on  him  throughout ; 
and  the  court  or  jury  who  have  to  decide  the  question  in  dispute  must 
decide  upon  the  whole  of  the  evidence  so  given:  and  if  it  does  not 
satisfy  them  that  the  will  is  valid,  they  ought  to  pronounce  against 
it.  If,  indeed,  a  will,  not  irrational  on  the  face  of  it,  is  produced 
before  a  jury,  and  the  execution  of  it  proved,  and  no  other  evidence 
is  offered,  the  jury  would  be  properly  told  that  they  ought  to  find  for 
the  will :  and,  if  the  party  opposing  the  will  gives  some  evidence  of 
incompetency,  the  jury  may,  nevertheless,  if  it  does  not  disturb  their 
belief  in  the  competency  of  the  testator,  find  in  favor  of  the  will : 
and  in  eacn  case  the  presumption  in  favor  of  competency  would  prevail. 
But  that  is  not  a  mere  presumption  of  law :  and.  when  the  whole  matter 
is  before  the  jury  on  evidence  given  on  both  sides,  they  ought  not 
to  affirm  that  a  document  is  the  will  of  a  competent  testator,  unless 
they  believe  that  it  really  is  so.  The  result  is,  that  the  rule  for  a  new 
trial  must  be  made  absolute."^ 

I — Compare    the     following    expositions:  sumption     of    sanity,     applicable    to    other 

Thomas,  J.,   in   Crowninshield  v.   Crown-  contracts,     is    to    be    applied    to    wills,     it 

inshield,    2    Gray    524     (1854);      "On    the  does    not    change    the    burden     of    proof; 

whole     matter,     we    are     of    opinion,     that  that    the   burden    of    proof    does    not    shift 

where    a    will    is    offered    for    probate,    the  in    the    progress    of    the    trial,    the    issue 

burden    of    proof,    in    this    Commonwealth,  throughout    being   one    and    the   same;    and 

is   on    the    executor    or    other    person    seek-  that    if,    upon    the    whole    evidence,    it    is 

ing   such    probate,   to   show   that   the   testa-  left    uncertain     whether    the    testator    was 

tor   was,    at   the   time   of   its    exception,   of  of    sound    mind    or    not,    then    it    is    left 

5ound     mind;     that     if     the     general     pre-  uncertain     whether    there    was    under    the 


722  BURDEN    OF   PROOF,   AND    PRESUMPTIONS.  No.  621. 

DAVIS  V.  UNITED  STATES  (1895). 
160  U.  S.  469,  16  Sup.  J5J. 
Harlan,  J.:  "Dennis  Davis  was  indicted  for  the  crime  of  having, 
on  the  i8th  day  of  September,  1894,  at  the  Creek  Nation,  in  the  Indian 
Territory,  within  the  Western  District  of  Arkansas,  feloniously, 
^"■'-  wilfully,  and  of  his  malice  aforethought,  killed  and  murdered  one 
Sol  Blackwell.  He  was  found  guilty  of  the  charge  in  the  indictment. 
A  motion  for  a  new  trial  having  been  overruled,  and  the  court  having 
adjudged  that  the  accused  vas  guilty  of  the  crime  of  murder,  as 
charged,  he  was  sentenced  to  suffer  the  penalty  of  death  by  hanging. 
At  the  trial  below  the  government  introduced  evidence  which,  if  alone 
considered,  made  it  the  duty  of  the  jury  to  return  a  verdict  of  guilty 
of  the  crime  charged.  But  there  was  evidence  tending  to  show  that 
at  the  time  of  the  killing  the  accused,  by  reason  of  unsoundness  or 
weakness  of  mind,  was  not  criminally  responsible  for  his  acts.  .  .  . 
The  issue,  therefore,  was  as  to  the  responsibility  of  the  accused  for 
the  killing  alleged  and  clearly  proved.  In  its  elaborate  charge  the 
Court  instructed  the  jury  as  to  the  rules  by  which  they  were  to  be 
guided  in  determining  whether  the  accused  took  the  life  of  the  de- 
ceased feloniously,  wilfully,  and  with  malice  aforethought.  .  .  . 
These  extracts  from  the  charge  of  the  Court  present  this  important 
question:  If  it  appears  that  the  deceased  was  killed  by  the  accused 
under  circumstances  which — nothing  else  appearing — made  a  case  of 
murder,  can  he  jury  properly  return  a  verdict  of  guilty  of  the  offence 
charged  if  upon  the  whole  evidence  from  whatever  side  it  comes  they 
have  a  reasonable  doubt  whether  at  the  time  of  killing  the  accused 
was  mentally  competent  to  distinguish  between  right  and  wrong  or  to 
understand  the  nature  of  the  act  he  was  committing?  If  this  question 
be  answered  in  the  negative  the  judptnent  must  be  reversed;  for  the 
Court  below  instructed  the  jury  that  the  defence  of  insanity  could  not 
avail  the  accused  unless  it  appeared  affirm'atively,  to  the  reasonable 
satisfaction  of  the  jury,  that  he  was  not  criminally  responsible  for 
his  acts.  The  fact  of  killing  being  clearly  proved,  the  legal  presump- 
tion, based  upon  the  common  experience  of  mankind,  that  every  man 
is  sane,  was  sufficient,  the  court  in  effect  said,  to  authorize  a  verdict 
of  guilty,  although  the  jury  might  entertain  a  reasonable  doubt  upon 
the  evidence,  whether  the  accused,  by  reason  of  his  mental  condition, 
was  criminally  responsible  for  the  killing  in  question.  In  other  words,, 
if  the  evidence  was  in  equilihrio  as  to  the  accused  being  sane,  that  is, 

statute  a  person  capable  of  making  the  city,  and  this  presumption  satisfies  the 
will,  and  the  will  cannot  be  proved."  burden  of  proof  in  that  respect;  and  the 
Whitfield,  J.,  in  Sheehan,  v.  Kearney,  contestant  must  fail  unless  he  overcomes 
—  Miss.  — ,  21  So.  46  (1896):  "Now,  this  by  proof  on  his  part.  But  there  is 
when  the  proponent  of  a  will  offers  the  no  shifting  of  the  burden  of  proof,  proper- 
will    and    the     record    of    its    probate,    a  ly    understood." 

presumption     is     thereby    raised     that    the  Compare    the    authorities    cited    in    W.». 

alleged     testator     had     testamentary     capa-  §   2500. 


1 


No.  621.  II.       SPECIFIC   PRESUMPTION'S.  723 

capable  of  comprehending  the  nature  and  effect  of  his  acts,  he  was 
to  be  treated  just  as  he  would  be  if  there  were  no  defence  of  insanity 
or  if  there  were  an  entire  absence  of  proof  that  he  was  insane. 

"This  exposition  of  criminal  law  is  not  without  support  by  adjudi- 
cations in  England  and  in  this  country.  .  .  .  There  are  other  cases  to 
the  same  general  effect,  some  of  them  holding  that  the  presumption 
of  sanity  will  prevail,  and  that  the  jury  may  properly  convict,  unless 
the  defence  of  insanity  is  established  beyond  a  reasonable  doubt ;  others, 
that  it  is  the  duty  of  the  jury  to  convict,  unless  it  appears  by  a  pre- 
ponderance of  evidence  that  the  accused  was  insane  when  the  killing 
occurred. 

"We  are  unable  to  assent  to  the  doctrine  that  in  a  prosecution  for 
murder,  the  defence  being  insanity,  and  the  fact  of  the  killing  with  a 
deadly  weapon  being  clearly  established,  it  is  the  duty  of  the  jury  to 
convict  where  the  evidence  is  equally  balanced  on  the  issue  as  to  the 
sanity  of  the  accused  at  the  time  of  the  killing.  On  the  contrary,  he 
is  entitled  to  an  acquittal  of  the  specific  crime  charged  if  upon  all 
the  evidence  there  is  reasonable  doubt  whether  he  was  capable  in  law 
of  committing  crime.  .  .  .  'As  a  vicious  will  without  a  vicious  act 
is  no  civil  crime,  so,  on  the  other  hand,  an  unwarrantable  act  without 
a  vicious  will  is  no  crime  at  all.  So  that  to  constitute  a  crime  against 
human  laws,  there  must  be,  first,  a  vicious  will ;  and,  secondly,  an  un- 
lawful act  consequent  upon  such  vicious  will.'  4  Bl.  Com.  21.  All 
this  is  implied  in  the  accepted  definition  of  murder.  .  .  .  Upon  whom 
then  must  rest  the  burden  of  proving  that  the  accused,  whose  life 
it  is  sought  to  take  under  the  forms  of  law,  belongs  to  a  class  capa- 
ble of  committing  crime?  On  principle,  it  must  rest  upon  those  who 
affirm  that  he  has  committed  the  crime  for  which  he  is  indicted.  That 
burden  is  not  fully  discharged,  nor  is  there  any  legal  right  to  take 
the  life  of  the  accused,  until  guilt  is  made  to  appear  from  all  the 
evidence  in  the  case.  The  plea  of  not  guilty  is  not  unlike  a  special 
plea  in  a  civil  action,  which,  admitting  the  case  averred,  seeks  to  estab- 
lish substantive  ground  of  defence  by  a  preponderance  of  evidence.  It 
is  not  in  confession  and  avoidance,  for  it  is  a  plea  that  controverts 
the  existence  of  every  fact  essential  to  constitute  the  crime  charged. 
Upon  that  plea  the  accused  may  stand,  shielded  by  the  presumption 
of  his  innocence,  until  it  appears  that  he  is  guilty ;  and  his  guilt  cannot 
in  the  very  nature  of  things  be  regarded  as  proved,  if  the  jury  enter- 
tain a  reasonable  doubt  from  all  the  evidence  whether  he  was  legally 
capable  of  committing  crime. 

"This  view  is  not  at  all  inconsistent  with  the  presumption  which 
the  law,  justified  by  the  general  experience  of  mankind  as  well  as 
by  considerations  of  public  safety,  indulges  in  favor  of  sanity.  If 
that  presumption  were  not  indulged  the  government  would  always  be 
under  the  necessity  of  adducing  affirmative  evidence  of  the  sanity  of 
an  accused.  But  a  requirement  of  that  character  would  seriously  delay 
and  embarrass  the  enforcement  of  the  laws  against  crime,  and  in  most 


724  BURDEN    OF    PROOF,    AND   PRESUMPTIONS.  JS'O.  G21. 

cases  be  unnecessary.  Consequently  the  law  presumes  that  every  one 
charged  with  crime  is  sane,  and  thus  supplies  in  the  first  instance  the 
required  proof  of  capacity  to  commit  crime.  It  authorizes  the  jury 
to  assume  at  the  outset  that  the  accused  is  criminally  responsible  for 
his  acts.  .  .  ,  But  to  hold  that  such  presumption  must  absolutely  con- 
trol the  jury  until  it  is  overthrown  or  impaired  by  evidence  sufficient 
to  establish  the  fact  of  insanity  beyond  all  reasonable  doubt  or  to  the 
reasonable  satisfaction  of  the  jury,  is  in  effect  to  require  him  to  estab- 
lish his  innocence,  by  proving  that  he  is  not  guilty  of  the  crime 
charged."^ 


SCHMISSEUR  V.  BEATRIE    (1893). 
147  III.  210,  35  N.  E.  525. 

Magruder,  J.:  "This  is  a  bill  filed  on  July  16,  1892,  in  the  Cir- 
cuit Court  of  St.  Clair  County  by  Elizabeth  Schmisseur  and  Mary 
Wuest  and  their  husbands  against  August  Beatrie  and  EHza- 
""  beth  Beatrie  for  the  partition  of  certain  lands.  The  defendants, 
who  are  minors,  answered  by  their  guardian  ad  litem.  Upon  hearing 
had,  the  decree  of  the  court  below  was  in  favor  of  the  defendants 
upon  the  material  issues  involved,  and  this  appeal  is  prosecuted  from 
said  decree  by  the  complainants.  Mary  Beatrie,  the  wife  of  Nicholas 
Beatrie,  died  testate  on  September  27,  1890,  owning  certain  lands  in 
said  county,  and  provided  in  her  will,  after  giving  her  husband  the 
sole  and  exclusive  use  and  control  of  her  property  real  and  personal 
during  his  life,  that  after  his  death  all  her  property,  both  real  and 
personal,  should  descend  to  her  'lawful  heirs  according  to  the  laws 
of  descent.'  On  March  25,  1892,  Nicholas  Beatrie,  her  husband,  died 
testate  as  to  the  major  portion  of  his  estate,  but  intestate  as  to  som.e 
of  his  real  estate.  Said  Nicholas  and  Mary  left  two  daughters,  the 
appellants  Elizabeth  Schmisseur  and  Mary  Wuest.  They  had  had  a 
son,  Nicholas  Beatrie  Jr.  who  died  before  either  of  them,  to  wit :  in 
the  year,  1880,  leaving  two  children,  the  appellees  August  Beatrie  and 
Elizabeth  Beatrie.  The  question  in  the  case  is,  whether  or  not  the 
appellees  are  the  legitimate  children  of  Nicholas  Beatrie  Jr.  deceased. 
If  they  are  his  legitimate  children,  then  the  decree  correctly  finds  that, 
as  the  grand-children  of  Mrs.  Mary  Beatrie,  deceased,  they  are  each 
entitled  to  an  undivided  one  sixth  part  of  the  real  estate  of  which  she 
died  seized,  and  that,  as  the  grand-children  of  Nicholas  Beatrie  Sr., 
they  are  each  entitled  to  an  undivided  one  sixth  part  of  the  real  estate 
owned  by  him  at  his  death  and  as  to  which  he  died  intestate. 

"The  case  turns  upon  the  validity  or  invalidity  of  the  marriage 
of  Nicholas  Beatrie  Jr.,  the  father  of  appellees,  with  Margaret  Hube, 
their  mother.     It  is  conclusively  proven,  that  said  Nicholas  Beatrie  Jr. 

2 — Compare  the  authorities  cited  in  W.,    §    2501. 


No.  622.  II.       SPECIFIC   PRESUMPTIONS.  725 

and  Margaret  Hube  of  St.  Clair  County  were  married  by  a  justice  of 
the  peace  of  said  county  on  November  14,  1876,  under  a  marriage 
license  duly  issued  on  that  day  by  the  county  clerk  of  that  county. 
It  is  claimed,  however,  by  the  appellants,  that  at  this  time  Nicholas 
Beatrie  Jr.  had  a  wife  by  a  former  marriage,  who  was  then  still  living 
and  undivorced.  A  second  marriage  is  void  where  either  of  the  par- 
ties to  it  has  a  husband  or  wife  by  a  former  marriage,  who  has  never 
been  divorced  and  is  still  living.  It  is  proven  that,  on  November  12, 
1872,  said  Nicholas  Beatrie  Jr.  was  married  to  Barbara  Anstedt  of 
said  county  by  a  Catholic  priest  in  said  county  in  pursuance  of  a  mar- 
riage license  duly  issued  by  the  county  clerk  of  said  county  on  No- 
vember 8,  1872.  He  and  Barbara  had  one  child  which  died  in  infancy. 
They  lived  together  as  man  and  wife  for  about  one  year  and  a  half, 
or  two  years,  in  said  county,  and  then  separated  and  never  lived  to- 
gether again.  She  was  living  at  the  time  of  the  marriage  with  Mar- 
garet Hube  and  did  not  die  until  1885,  five  years  after  the  death  of 
Nicholas  Beatrie  Jr.  One  witness  swears,  that  she  married  one  John 
Meyer  after  she  separated  from  said  Nicholas,  and  before  the  latter's 
second  marriage  in  November,  1876. 

"When  a  marriage  license  has  been  solemnized  according  to  the 
forms  of  law  every  presumption  will  be  indulged  in  favor  of  its 
validity.  The  presumption  is  one  in  favor  of  innocence,  as  it  will 
be  presumed  that  a  man  will  not  commit  the  crime  of  bigamy  by 
marrying  a  second  time  while  his  first  wife  is  living.  Absence  for 
seven  years  without  being  heard  from  creates  the  presumption  of 
death.  But  the  presumption  in  favor  of  the  validity  of  marriage  is 
so  strong,  that  a  former  husband  or  wife  will  be  presumed  to  be  dead 
after  an  absence  of  less  than  seven  years.  The  ordinary  presumption 
in  favor  of  the  continuance  of  human  life  is  made  to  give  way  to  the 
presumption  in  favor  of  the  innocence  of  a  second  marriage.  In  the 
present  case,  however,  no  presumption  as  to  the  death  of  Barbara 
Beatrie  can  be  indulged  in  favor  of  the  validity  of  the  marriage  with 
Margaret  Hube,  because  the  proof  shows  affirmatively  that  said  Bar- 
bara was  alive  when  said  marriage  took  place,  and  for  nine  years 
thereafter. 

"It  is  claimed,  however,  in  behalf  of  the  appellees,  that  Nicholas 
Beatrie  Jr.  will  be  presumed  to  have  been  divorced  from  his  first  wife 
before  he  married  the  second  time.  We  have  said  that  the  courts  'will 
often  presume  a  previous  divorce  in  order  to  sustain  the  second  mar- 
riage.' (Cartwright  v.  McGown,  121  111.  388.)  .  .  .  The  two  marriages 
of  Nicholas  Beatrie  Jr.,  and  the  existence  of  the  first  wife  at  the  time 
of  the  second  marriage,  being  established  by  proof,  the  presumption 
would  arise  in  favor  of  a  divorce  from  the  first  wife  in  order  to  sustain 
the  second  marriage.  In  view  of  this  presumption  the  burden  of  proof 
rested  upon  the  appellants,  as  the  objecting  parties,  to  show  that  there 
had  been  no  divorce.  The  law  is  so  positive  in  requiring  a  party,  who 
assert  the  illegality  of  a  marriage,  to  take  the  burden  of  proving  it, 


726  BURDEN    OF   PROOF,   AND   PRESUMPTIONS.  No.  622. 

that  such  a  requirement  is  enforced  even  though  it  involves  the  prov- 
ing of  a  negative. 

"In  order  to  show  that  there  had  been  no  divorce,  the  complainants 
below  introduced  the  bill  and  other  proceedings  in  a  divorce  suit  begun 
by  Nicholas  Beatrie  Jr.  against  Barbara  Beatrie.  The  bill  in  that  suit 
was  filed  on  November  14,  1876,  in  the  Circuit  Court  of  St.  Glair 
County.  It  alleged  that  said  Nicholas  was  married  to  said  Barbara 
on  November  12,  1872;  that  he  lived  with  her  until  October,  1873; 
that  on  October  i,  1873,  she  wilfully  deserted  and  absented  herself  from 
him  without  any  reasonable  cause  and  continued  such  desertion  for  more 
than  two  years;  that  she  had  committed  adultery  with  one  Meyer,  and 
was  living  with  him  as  his  wife,  etc.  Summons  was  served  on  said 
Barbara  on  December  11,  1876.  No  decree  of  divorce  was  ever  entered 
in  said  cause.  The  record  shows  that,  at  the  January  term,  1877,  the 
cause  was  continued,  and  at  the  April  term,  1877,  the  court  ordered 
that  it  'be  dismissed  at  complainant's  costs  and  execution  is  awarded 
therefor.'  It  will  be  noted,  that  the  bill  for  divorce  was  filed  on  the 
same  day  on  which  the  second  marriage  took  place.  It  contains  an 
admission  by  Nicholas  Beatrie  Jr.,  that,  on  that  day,  he  was  still  the 
lawful  husband  of  his  first  wife,  and  had  not  been  divorced  from  her. 
...  In  Cartwright  v.  McGown,  supra,  it  appeared  that  the  first  mar- 
riage took  place  in  Kentucky  in  1841,  and  the  second  in  Illinois  in 
1843  while  the  first  wife  was  living  and  undivorced ;  and  it  was  held 
that,  as  the  divorce  obtained  by  the  first  wife  was  not  granted  until 
1846,  the  facts  did  not  justify  the  Court  in  presuming  that  the  hus- 
band had  procured  a  divorce  from  his  first  wife. 

"It  is  said,  however,  that  although  Nicholas  Beatrie  Jr.  may  not 
have  obtained  a  divorce  from  his  first  wife  Barbara,  yet  the  law  will 
indulge  the  presumption  that  she  obtained  a  divorce  from  him  before 
November  14,  1876,  in  order  to  sustain  the  validity  of  the  second  mar- 
riage entered  into  on  that  day.  .  .  .  But,  in  the  case  at  bar,  the  com- 
plainants below  not  only  introduced  in  evidence  the  bill  of  divorce 
above  mentioned  and  the  proceedings  showing  its  dismissal  without 
a  decree,  but  they  also  proved  that  Nicholas  Beatrie  Jr.  and  his  first 
wife  had  lived  in  St.  Clair  County  and  been  residents  thereof  during 
all  their  lives,  and  that,  from  an  examination  of  the  records  of  the 
Circuit  Court  of  that  county  from  March,  1872,  to  September,  1881, 
no  entries  appeared  in  any  suit  of  Nicholas  Beatrie  Jr.  against  Bar- 
bara Beatrie,  or  of  Barbara  Beatrie  against  Nicholas  Beatrie  Jr.,  ex- 
cept those  already  specified.  .  .  .  The  evidence  introduced  to  show  that 
there  had  been  no  divorce  was  sufficient  to  so  far  overcome  the  pre- 
sumption in  favor  of  a  divorce  obtained  by  the  first  wife,  as  to  shift 
back  upon  the  defendants  the  burden  of  showing,  that  there  had  been 
a  divorce.  .  .  .  Besides  proof  of  the  first  marriage,  and  of  the  exist- 
ence of  the  first  wife  at  the  time  of  the  second  marriage,  and  of  the 
admission  of  the  husband  that  he  had  not  been  divorced  from  his  first 
wife  when  he  married  the  second  one,  it  was  shown,  that  no  divorce 


No,  623.  II.       SPECIFIC   PRESUMPTIONS.  727 

had  been  obtained  by  either  the  husband,  or  his  first  wife,  in  the  Cir- 
cuit Court  of  the  county  where  both  of  them  had  always  resided,  and 
where  divorce  proceedings,  if  there  had  been  any,  would  be  most 
naturally  looked  for.  This  testimony  threw  the  burden  on  the  de- 
fendants below  to  go  farther,  and  prove  that  a  divorce  had  been 
obtained  if  such  was  the  fact.  A  decree  of  divorce  is  a  matter  of 
record,  and,  if  such  a  record  is  in  existence,  it  can  be  produced. 

"For  the  reasons  here  stated,  we  think,  that  the  case  ought  to  be 
reversed  and  sent  back,  in  order  that  the  appellees  may  have  the 
opportunity  of  proving  that  there  was  a  divorce  between  Nicholas 
Beatrie  Jr.  and  his  first  wife,  if  such  proof  can  be  furnished."* 


GULF,  COLORADO  &  SANTA  FE  R.  CO.  v.  SHIEDER    (1895). 
88  Tex.  1^2,  ^o  S.  W.  po2. 

Denman,  J.:  "This  suit  was  brought  by  T.  D.  Shieder  against  the 
Gulf,  Colorado  &  Santa  Fe  Railway  Company  to  recover  damages  for 
injuries  inflicted  upon  the  plaintiff's  wife  in  a  collision  between 
**"•**  one  of  the  trains  of  defendant  and  the  buggy  in  which  Mrs. 
Shieder  was  riding  at  the  intersection  of  a  public  street  with  the  rail- 
road in  the  town  of  Ballinger  on  the  17th  day  of  April,  1892.  .  .  .  The 
Court  below  charged  the  jury  that  the  burden  of  proof  was  upon  de- 
fendant railroad  to  establish  contributory  negligence  on  the  part  of 
JSIrs.  Shieder.  This  charge  is  assigned  as  error.  There  is  much  con- 
flict of  authority  upon  the  question  as  whether  the  burden  of  proof, 
upon  the  issue  of  contributory  negligence,  rests  upon  plaintiff  or  de- 
fendant. The  confusion  resulting  is  intensified  by  the  fact  that  few,  if 
any,  jurisdictions  can  be  found  in  which  the  decisions  of  the  courts 
of  last  resort  can  be  entirely  reconciled  upon  this  important  question. 
A  careful  examination  of  the  cases  leads  us  to  the  conclusion  that 
much  of  the  apparent  conflict  in  the  decisions  of  any  particular  State 
is  due  to  the  fact  that  the  Courts,  in  deciding  individual  causes,  have 
sometimes  relied  upon  the  authority  of  decisions  of  Courts  holding 
a  different  view  of  the  law  as  to  burden  of  proof;  such  differences  not 
appearing  on  the  face  of  the  opinions,  but  lurking  in  the  principle  upon 
which  they  are  based.  The  two  classes  of  decisions,  and  the  reasons 
by  which  they  are  respectively  supported,  are  essentially  antagonistic. 
They  start  from  different  premises,  and  logically  arrive  at  different 
results,  and  therefor  the  citation  of  one  to  support  the  other  generally 
leads  to  confusion.  Mr.  Beach,  who  undertakes  to  defend  the  rule 
imposing  the  burden  on  the  plaintiff,  asserts  that  it  is  supported  by 
'the  decided  weight  of  authority.'  and  declares  it  to  be  the  doctrine 
in  Massachusetts.  Maine.  Mississippi,  Louisiana,  North  Carolina,  Michi- 

3 — Compare     the     authoriiiea    cited     in   W.,    $    2506. 


728  BURDEN   OF   PROOF,   AND   PRESUMPTIONS,  No.  623, 

gan,  Oregon,  Illinois,  Connecticut,  Iowa,  Indiana,  and  probably  New 
York,  but  candidly  admits  that  the  contrary  is  the  settled  rule  in  Eng- 
land, the  supreme  court  of  the  United  States,  Alabama,  California, 
Georgia,  Kentucky,  Kansas,  Maryland,  Minnesota,  Missouri,  New 
Hampshire,  New  Jersey,  Nebraska,  Ohio,  Pennsylvania,  Rhode  Island, 
South  Carolina,  Texas,  Wisconsin,  West  Virginia,  Vermont,  and  Colo- 
rado, and  is  the  opinion  of  the  text  writers.  .  .  . 

"The  rule  seems  to  be  well  settled  that  it  is  not  necessary  for  the 
plaintiff  in  his  petition  to  negative,  either  by  facts  stated  or  by  ex- 
press averment,  the  existence  of  contributory  negligence  on  his  part. 
.  .  .  We  have  been  able  to  find  no  case  where  such  pleading  has  been 
required,  except  in  a  few  of  those  states  where  the  burden  of  proof 
is  upon  plaintiff  to  show  that  he  was  not  guilty  of  contributory  negli- 
gence. Since  these  States  have  changed  the  well-established  and  logical 
rule  of  evidence  at  common  law,  consistency  would  seem  to  require  a 
corresponding  change  in  the  rule  of  pleading;  but  it  seems  that  only 
a  few  of  them  have  so  ruled.  .  .  .  We  are  of  the  opinion  that  the  great 
weight  of  authority,  as  well  as  the  reason  of  the  law,  is  in  favor  of 
the  rule  which  imposes  the  burden  of  proof  upon  defendant  to  estab- 
lish plaintiff's  contributory  negligence,  and  it  may  be  considered  the 
settled  law  in  this  State.  ...  It  is  not  necessary  for  us  to  determine 
here  in  what  class  of  cases  a  special  plea  of  contributory  negligence 
is  required,  but  it  seems  generally  to  be  admissible  in  many  jurisdic- 
tions under  the  general  denial,  even  where  the  burden  of  proof  is  on 
defendant. 

"To  the  general  rule  imposing  upon  the  defendant  the  burden  of 
proof  on  the  issue  of  contributory  negligence  there  appear  to  be,  in 
the  very  nature  of  things,  two  well-defined  exceptions :  First,  Where 
the  legal  effect  of  the  facts  stated  in  the  petition  is  such  as  to  es- 
tablish prima  facie  negligence  on  the  part  of  plaintiff  as  a  matter  of 
law,  then  he  must  plead  and  prove  such  other  facts  as  will  rebut  such 
legal  presumption.  The  plain  reason  is  that  by  pleading  facts  which, 
as  a  matter  of  law,  establish  his  contributory  negligence,  he  has  made 
a  prima  facie  defense  to  his  cause  of  action  which  will  be  accepted 
as  true  against  him,  both  on  demurrer  and  as  evidence  on  the  trial, 
unless  he  pleads  and  proves  such  other  facts  and  circumstances  that 
the  Court  cannot,  as  a  matter  of  law,  hold  him  guilty  of  contributory 
negligence.  When  he  has  done  this,  he  has  made  a  case  which  must 
be  submitted  to  the  jury.  For  instance,  if  plaintiff's  petition  shows 
that  he  was  injured  by  defendant's  cars  while  on  the  track  under  cir- 
cumstances which  in  law  would  make  him  a  trespasser  prima  facie, 
then  the  law  would  raise  a  presumption  of  contributory  negligence 
against  him,  for  which  his  petition  would  be  bad  on  demurrer;  and 
it  would  be  necessary  for  him  to  plead  some  fact  or  circumstance  re- 
butting such  presumption, — such  as  that  he  was,  after  going  upon  the 
track,  stricken  down  by  some  providential  cause, — in  order  to  save  his 
petition,  and  on  the  trial  the  burden  would  be  upon  him  to  establish 


No.  024.  II.      SPECIFIC  PRESUMPTIONS.  Y29 

iuch  cause.  Second,  When  the  undisputed  evidence  adduced  on  the 
trial  establishes //-md!/ar/>  as  a  matter  of  law  contributory  negligence 
on  the  part  of  plaintiff,  then  the  burden  of  proof  is  upon  him  to  show 
facts  from  which  the  jury  upon  the  whole  case  may  find  him  free 
from  negligence ;  otherwise  the  Court  may  instruct  a  verdict  for  de- 
fendant, there  being  no  issue  of  fact  for  the  jury."* 


SCOTT  V.  LONDON  &  ST.  KATHARINE  DOCKS  CO.  (1865). 
3  H.  &  C.  596. 

The  declaration  stated  that  the  defendants  were  possessed  of  a  ware- 
house and  of  a  certain  crane  or  machine  for  lowering  goods  there- 
from, and  at  the  time  of  the  grievances  committed  by  them  as 
hereinafter  mentioned,  they,  by  their  servants  in  that  behalf, 
were  lowering  by  the  said  crane  or  machine  from  the  said  warehouse 
certain  bags  of  sugar  on  to  the  ground  and  stone  pavement  in  the 
docks  of  the  said  Company,  and  on  and  along  which  the  plaintiff  was 
then  lawfully  passing;  and  the  defendants,  by  their  servants,  so  negli- 
gently, carelessly  and  improperly  lowered  the  said  bags  of  sugar  and 
conducted  themselves  in  that  behalf,  that  the  same  came  and  fell  upon 
and  against  the  plaintiff:  Whereby  the  plaintiff  was  greatly  wounded, 
bruised,  hurt  and  permanently  injured,  &c.  Plea,  not  guilty,  and  issue 
thereon.  At  the  trial  before  Martin,  B.,  at  the  London  Sittings  after 
Trinity  Term,  1864,  the  plaintiff  deposed  as  follows:  "I  am  an  officer 
of  the  Customs.  I  am  an  auxiliary  examiner.  I  superintend  weigh- 
ing goods.  On  the  19th  of  January  I  had  performed  duty  at  the  East 
Quay  of  the  London  Docks.  I  was  directed  to  go  from  the  East  Quay 
to  the  Spirit  Quay  by  Mr.  Lilly,  the  surveyor.  I  went  to  the  Spirit 
Quay  in  order  to  do  duty.  I  proceeded  on  my  way.  ...  In  passing 
from  one  doorway  to  the  other  I  was  felled  to  the  ground  by  six 
bags  of  sugar  falling  upon  me.  (He  then  described  the  injuries  he 
received.)  No  one  but  myself  was  at  the  place.  I  had  no  warning. 
There  was  no  fence  or  barrier.  No  one  called  out.  I  heard  the  rattling 
of  a  chain."  At  the  conclusion  of  the  plamtiff's  examination  in  chief 
the  learned  Judge  expressed  his  opinion  that,  even  assuming  that  the 
bags  of  sugar  were  being  dealt  with  by  the  servants  of  the  defendants 
in  the  course  of  their  employment,  and  that  the  plaintiff  was  lawfully 
passing  through  the  Docks,  there  was  not  sufficient  evidence  of  negli- 
gence on  the  part  of  the  defendants  to  entitle  him  to  leave  the  case 
to  the  jury;  and  his  londship  then  directed  the  jury  to  find  a  verdict 
for  the  defendants. 

Field  {Murphy  with  him)   argued  for  the  defendants:     "There  was 

4 — Compare  the  authorities  cited  in  W.,   §    2507. 


730  BURDEN    OF   PROOF,    AND   PRESUMPTIONS.  No.  624. 

no  evidence  of  negligence  which  ought  to  have  been  submitted  to  the 
jury.  ...  A  scintilla  of  evidence,  or  a  mere  surmise  that  there  may 
have  been  negligence  on  the  part  of  the  defendants,  will  not  justify  a 
Judge  in  leaving  the  case  to  the  jury:  Toomey  v.  The  London,  Brigh- 
ton and  South  Coast  Railway  Company,  3  C.  B.  N.  S.  146,  150.  That 
doctrine  was  acted  upon  in  Hammack  v.  White,  11  C.  B.  N.  S.  588. 
There  Erie,  J.,  in  the  course  of  the  argument  said:  *I  do  not  assent 
to  the  doctrine  that  mere  proof  of  the  accident  throws  upon  the  de- 
fendants the  burthen  of  showing  the  real  cause  of  the  injury.  All  the 
cases  where  the  happenings  of  an  accident  hcs  been  held  to  be  prima 
facie  evidence  of  negligence  have  been  cases  of  contract.'  [Black- 
burn, J. :  'The  question  depends  on  the  nature  and  character  of  the 
accident.  If  a  ship  goes  down  in  the  sea  that  is  equally  as  consistent 
with  care  as  with  negligence;  but  if  a  ship  goes  down  in  a  dock,  is 
not  the  fact  of  the  accident  prima  facie  evidence  of  negligence.'] 
There  was  no  evidence  of  want  of  reasonable  care.  The  fact  of  lower- 
ing the  bags  is  quite  as  consistent  with  care  as  with  the  absence  of  it." 
.  .  .  [Blackburn^  J.:  "There  is  an  old  pleading  rule,  that  less  par- 
ticularity is  required  when  the  facts  lie  more  in  the  knowledge  of  the 
opposite  party  than  of  the  party  pleading.  Applying  that  here,  is  not 
the  fact  of  the  accident  sufficient  evidence  to  call  upon  the  defendants 
to  prove  that  there  was  no  negligence?"] 

The  Solicitor-General  (T  Jones  with  him),  for  the  plaintiff:  "It  is 
conceded  that  where  the  evidence  is  as  equally  consistent  with  due 
care  as  with  negligence,  there  is  no  case  for  the  jury.  It  is  also  con- 
ceded that  it  is  not  enough  to  show  a  mere  scintilla  of  evidence.  No 
rule  can  be  laid  down  that  the  mere  fact  of  an  accident  is  evidence  of 
negligence;  for  each  case  must  depend  on  its  own  circumstances.  .  .  . 
The  true  test  is,  whether  the  case  is  more  consistent  with  negligence 
than  care.  Looking  at  the  simple  fact  that  the  bags  of  sugar  fell 
violently  upon  the  plaintiff,  this  case  is  more  consistent  with  negligence 
than  care." 

Erle,  C.  J. :  "The  majority  of  the  Court  have  come  to  the  following 
conclusions:  There  must  be  reasonable  evidence  of  negligence.  But 
where  the  thing  is  shown  to  be  under  the  management  of  the  defendant 
or  his  servants,  and  the  accident  is  such  as  in  the  ordinary  course  of 
things  does  not  happen  if  those  who  have  the  management  use  proper 
care,  it  affords  reasonable  evidence,  in  the  absence  of  explanation  by 
the  defendants,  that  the  accident  arose  from  want  of  care.  We  all 
assent  to  the  principles  laid  down  in  the  cases  cited  for  the  defendants ; 
but  the  judgment  turns  on  the  construction  to  be  put  on  the  Judge's 
notes.  As  my  brother  Mellor  and  myself  read  them  we  cannot  find  that 
reasonable  evidence  of  negligence  which  has  been  apparent  to  the  rest 
of  the  Court."^ 

5 — Compare  the  authorities  cited  in  W.,   §    2508. 


No.  625.  II.      SPECIFIC   PRESUMPTIONS.  731 


STATE  V.  BRADY  (1902). 
—  la.  —,  91  N.  W.  801. 

Weaver,  J.:  "The  evidence  for  the  state  tended  to  show  that  on 
the  night  of  September  29,  1900,  the  barn  of  one  Stuart,  situated  several 
miles  east  of  the  city  of  Des  Moines,  was  unlawfully  broken  and 
entered,  and  certain  harness  stolen  therefrom ;  that  on  said  night 
defendant  was  seen  upon  the  public  highway  in  that  neighborhood; 
that  about  ten  days  thereafter  the  stolen  property,  or  some  of  it,  was 
found  in  his  possession ;  and  that  he  made  some  statements  or  admis- 
sions serving  to  strengthen  the  suspicion  of  his  guilt.  The  defendant 
denied  his  guilt,  and  offered  considerable  evidence  tending  to  prove 
an  alibi,  and  explained  his  possession  of  the  harness  by  the  statement 
that  he  bought  it  of  a  person  who  brought  it  to  his  residence  in  Des 
Moines  on  the  morning  after  the  alleged  crime,  which  statement  was 
also  corroborated  by  several  witnesses.  Among  the  instructions  given 
by  the  Court  to  the  jury  are  the  following:  .  .  .  '(8)  So,  too,  the  pos- 
session of  property  that  has  been  recently  stolen  from  a  building  by 
means  of  breaking  and  entering  said  building  is  sufficient  to  raise  a 
presumption  of  guilt  of  the  person  in  whose  possession  said  property 
is  found ;  that  is,  it  creates  the  presumption  that  he  is  the  party  that 
broke  and  entered  said  building,  and  took  therefrom  the  said  property, 
unless  the  attending  circumstances  or  evidence  explains  said  possession, 
and  shows  that  the  same  may  have  been  otherwise  honestly  ac- 
quired. .  .  .' 

"As  to  the  effect  to  be  given  in  prosecutions  for  burglary  to  proof 
of  possession  of  goods  stolen  in,  connection  with  the  breaking  and  en- 
tering, the  authorities  are  not  entirely  in  harmony.  There  are  decisions 
which  hold  without  qualification  that  the  fact  of  possession  of  property 
recently  stolen,  under  such  circumstances  has  no  tendency  to  prove  the 
possessor's  guilt  of  the  burglary.  And,  on  the  other  hand,  there  seem 
to  be  cases  which  hold  that  such  fact  alone  creates  a  sufficient  pre- 
sumption of  guilt  to  justify  conviction  of  the  accused.  The  rule,  how- 
ever, which  is  recognized  by  the  great  weight  of  authority,  and  most 
commends  itself  to  our  sense  of  reason  and  justice,  adopts  neither  of 
the  extremes  mentioned,  and  may  be  stated  as  follows;  There  is  no 
presumption  of  guilt  of  burglary  attaching  to  the  mere  possession  of 
the  stolen  goods  by  the  accused,  but  such  fact,  if  the  alleged  crime  be 
of  recent  occurrence,  has  a  tendency  to  prove  his  guilt,  and,  if  there 
be  other  proved  circumstances  tending  to  connect  him  with  the  com- 
mission of  the  offense,  the  fact  of  possession,  thus  aided,  will  sustain 
a  conviction.  .  .  .  Under  the  rule  thus  established,  the  instruction  in 
the  present  case  that  the  possession  of  the  goods  by  the  appellant 
'creates  the  presumption  that  he  is  the  party  who  broke  and  entered 
the  building'  was  error. 


732  BURDEN    OF   PROOF,   AND   PRESUMPTIONS.  No.  625. 

"The  use  of  the  terms  'presumption  of  guilt'  and  'prima  facie  evi- 
dence of  guilt'  with  reference  to  the  possession  of  stolen  goods  has 
perhaps  been  too  long  indulged  in  by  Courts  and  text-writers  to  be 
condemned,  but  we  cannot  resist  the  conclusion  that,  when  so  em- 
ployed, these  expressions  are  unfortunate,  and  often  misleading.  In  a 
civil  proceeding,  when  a  plaintiff  makes  a  prim<i  facie  case,  the  burden 
is  shifted,  and,  in  the  absence  of  any  countershowing,  he  is  entitled 
to  recover  as  a  matter  of  law.  This  rule  is  understood  by  the  average 
intelligent  layman  as  well  as  by  those  learned  in  the  law;  and  when, 
in  a  criminal  case,  an  instruction  is  given  that  the  showing  of  a 
specific  fact  is  prima  facie  evidence  of  guilt,  jurors  may  very  naturally 
conclude  that  the  establishment  of  such  fact  has  the  effect  to  cast  upon 
defendant  the  burden  of  proving  his  innocence  of  the  charge  against 
him.  .  .  .  'Presumptions'  of  guilt  and  'prima  facie'  cases  of  guilt  in 
the  trial  of  a  party  charged  with  crime  mean  no  more  than  that  from 
the  proof  of  certain  facts  the  jury  will  be  warranted  in  convicting  the 
accused  of  the  offense  with  which  he  is  charged."^ 


DAVIE  v.  BRIGGS  (1878). 
97  U.  S.  628,  633. 

Harlan,  J.:  "The  appellants^  as  the  heirs-at-law  of  All'^'n  Jones 
Davie,  deceased,  assert  an  interest  in  the  proceeds  of  a  sale  which  took 
place  in  June,  1853,  of  a  tract  of  land  in  Guilford  County,  North 
"^"  Carolina,  known  many  years  ago  as  the  McCuUoch  gold-mine. 
Whether  the  defence,  so  far  as  it  rests  upon  the  Statute  of  Limitations 
of  North  Carolina,  can  be  sustained,  [against  a  suit  begun  in  July,  1874,] 
depends  upon  the  evidence  as  to  the  time  when  Allen  Jones  Davie  died. 
The  learned  counsel  for  appellants  insist  that,  consistently  with  the 
legal  presumption  of  death  after  the  expiration  of  seven  years,  without 


6 — Compare     the     following     phrasings:  Blackburn,   J.:     "I   should   have   said   that 

R.   V.    Cockin,   2    Lew   Cr.    C.    235    (1836):  recent    possession    was    evidence    either    of 

Sacks    stolen    in    February    were    found    in  stealing     or     receiving     according     to     cri- 

the     defendant's     possession     some    twenty  cumstances.  .  .  .  When  it  has  been  shown 

days     after;     Coleridge,     J.:       "If    I     was  that    property    has    been    stolen    and    has 

now  to  lose  my  watch,  and  in  a  few  min-  been    found   recently   after   its   loss   in   the 

utes    it    was    to    be    found    on    the    person  possession    of    the    prisoner,    he    is    called 

of  one  of  you,  it  would  afford  the  strong-  upon    to    account    for    having    it,    and,    on 

est    ground    for    presuming    that    you    had  his    failing   to    do    so,    the    jury    may    very 

stolen   it.      But   if  a   month   hence   it   were  well    infer    that    his    possession    was    dis- 

to   be    found    in    your   possession,    the   pre-  honest,    and    that   he   was    either    the   thief 

sumption    of   your   having   stolen   it   would  or    the   receiver,    according   to   the    circum- 

be      greatly      weakened;      because      stolen  stances." 

property     usually     passes     thr'ough     many  Compare    the    authorities    cited    in    W.    J 

hands."  2313;    and   the    doctrine   of    No.    32,   ante^ 

R.  V.  Langmead,  Leigh  &  C.  427   (1864): 


No.  626.  II.       SPECIFIC   PRESUMPTIONS,  733 

Allen  Jones  Davie  being  heard  from  by  his  family  and  neighbors,  the 
date  of  such  death  should  not  be  fixed  earlier  than  the  year  1858.  In 
that  view, — excluding  from  the  computation  of  time  the  war  and  re- 
construction period  between  Sept.  i,  1861,  and  Jan.  i,  1870,  as  required 
by  the  statutes  of  North  Carolina  (Johnson  v.  Winslow,  63  N.  C.  552), 
— the  suit,  it  is  contended,  would  not  be  barred  by  limitation. 

"The  general  rule  undoubtedly  is,  that  'a  person  shown  not  to  have 
been  heard  of  for  seven  years  by  those  (if  any)  who,  if  he  had  been 
alive,  would  naturally  have  heard  of  him,  is  presumed  to  be  dead, 
unless  the  circumstances  of  the  case  are  such  as  to  account  for  his  not 
being  heard  of  without  assuming  his  death.'  Stephen,  Law  of  Evid., 
c.  14,  art.  99;  I  Greenl.  Evid.,  sect.  41;  i  Taylor,  Evid.,  sect.  157,  and 
authorities  cited  by  each  author.  But  that  presumption  is  not  conclu- 
sive, nor  is  it  to  be  rigidly  observed  without  regard  to  accompanying 
circumstances  which  may  show  that  death  in  fact  occurred  within  the 
seven  years.  If  it  appears  in  evidence  that  the  absent  person,  within 
the  seven  years,  encountered  some  specific  peril,  or  within  that  period 
came  within  the  range  of  some  impending  or  immediate  danger,  which 
might  reasonably  be  expected  to  destroy  life,  the  Court  or  jury  may 
infer  that  life  ceased  before  the  expiration  of  the  seven  years.  Mr. 
Taylor,  in  the  first  volume  of  his  Treatise  on  the  Law  of  Evidence 
(sect.  157),  says,  that  'although  a  person  who  has  not  been  heard  of 
for  seven  years  is  presumed  to  be  dead,  the  law  raises  no  presumption 
as  to  the  time  of  his  death ;  and,  therefore,  if  any  one  has  to  establish 
the  precise  period  during  those  seven  years  at  which  such  person  died, 
he  must  do  so  by  evidence,  and  can  neither  rely,  on  the  one  hand,  on 
the  presumption  of  death,  nor,  on  the  other,  upon  the  presumption  of 
the  continuance  of  life.'  These  views  are  in  harmony  with  the  settled 
law  of  the  English  courts.  .  .  . 

"We  therefore  follow  the  established  law  when  we  inquire  whether, 
according  to  the  evidence,  Allen  Jones  Davie  died  at  an  earlier  date 
than  at  the  end  or  expiration  of  the  seven  years  when  the  legal  pre- 
sumption of  his  death  arose.  It  seems  to  us  that,  upon  the  showing 
made  by  the  complainants  themselves,  the  conclusion  is  inevitable  that 
he  died  some  time  during  the  year  iSfi.  ...  In  view  of  this  evidence, 
we  cannot  accept  as  absolutely  controlling  the  legal  presumption  which, 
in  regard  to  Allen  J.  Davie's  death,  arose  at  the  expiration  of  seven 
years  from  the  time  when  he  was  last  heard  from.  We  cannot  deter- 
mine the  rights  of  the  parties  upon  the  hypothesis  that  his  death  oc- 
curred in  the  year  1858,  when  the  appellants  themselves  and  their  chief 
witnesses  not  only  unite  in  declaring  their  belief  that  he  died  in  1851, 
but  state  facts  which  fully  justify  that  belief.  Concluding  then,  as  we 
must,  that  he  died  in  the  year  1851,  it  seems  clear  that  the  claim  set 
up  in  the  bill  to  an  interest  in  the  proceeds  of  the  sale  of  June.  1853,  is 
barred  by  the  limitation  of  three  years  prescribed  by  the  North  Caro- 
lina statute." 


734  LAW  AND  FACT.  No.  627. 


BOOK   III. 

TO  WHOM  EVIDENCE  MUST  BE  PRESENTED. 

(LAW  AND  FACT;    JUDGE  AND  JURY). 

BARTLETT  v  SMITH    (1843). 
//  M.  &  W.  483. 

Assumpsit  by  the  endorsee  against  the  drawer  of  a  bill  of  exchange. 
The  declaration  stated,  that  the  defendants,  on,  &c.,  made  their  certain 
bill  of  exchange  in  writing,  and  directed  the  same  to  Mr.  John 
^^^  E.  Butcher,  Dublin,  and  thereby  required  the  said  J.  E.  Butcher 
to  pay  to  the  order  of  the  defendants,  in  London,  the  sum  of  £17.  It 
then  alleged  the  endorsement  of  the  bill  to  the  plaintiffs.  The  de- 
fendant, by  his  pleas,  denied  the  drawing  and  endorsement.  At  the 
trial  before  the  Undersheriff  of  Middlesex,  the  bill,  when  produced, 
appeared  to  be  drawn  in  Dublin,  payable  in  London,  and  was  stamped 
as  a  foreign  bill.  On  the  plaintiff's  counsel  proposing  to  read  it  in  evi- 
dence, the  defendant's  counsel  objected,  on  the  ground  that,  although 
the  bill  purported  to  be  drawn  in  Dublin,  it  was  in  fact  drawn  in 
London,  and  being  therefore  an  inland  bill,  required  a  higher  stamp; 
and  proposed  to  give  evidence  of  that  fact.  The  Undersheriff  how- 
ever said,  that  as  the  bill  was  not  objectionable  on  the  face  of  it,  he 
should  allow  the  case  to  proceed;  on  which  the  defendant's  counsel 
addressed  the  jury,  and  afterwards  adduced  evidence  to  show  that  at 
the  time  the  bill  bore  date,  the  drawer  was  in  London:  whereupon 
the  Undersheriff  left  it  to  the  jury  to  say  whether  the  bill  was  drawn 
in  London  or  Dublin,  but  reserved  leave  to  the  defendants  to  move  to 
enter  a  nonsuit  if  this  Court  should  think  he  ought  to  have  received 
the  evidence  in  the  first  instance,  and  to  have  decided  upon  it.  .  .  . 

Lord  Abinger,  C.  B.  :  "I  am  of  opinion  that  this  rule  must  be  made 
absolute  for  a  new  trial,  but  no  to  enter  a  nonsuit.  All  questions  re- 
specting the  admissibility  of  evidence  are  to  be  determined  by  the  judge, 
who  ought  to  receive  that  evidence,  and  decide  upon  it  without  any 
reference  to  the  jury.  In  all  cases  where  an  objection  is  made  to  the 
competency  of  witnesses,  any  evidence  to  show  their  incompetency 
must  be  received  by  the  judpfe,  and  adjudicated  on  by  him  alone.  So, 
in  the  present  case,  evidence  offered  to  impeach  the  admissibility  of 
the  bill,  on  the  ground  that  it  was  improperly  stamped,  should  have 
been  received  by  the  judge,  and  determined  by  him  before  the  bill  was 
allowed  to  be  read  to  the  jury.  When  the  objection  was  made  that  the 
bill  bore  a  wrong  stamp,  the  Undersheriff  ought  to  have  received  the 
evidence  to  impeach  it,  before  he  allowed  the  bill  to  be  read;    and  it 


No.  628.  LAW  AND  FACT.  735 

was  for  him  to  say  whether  the  evidence  adduced  for  the  purpose  was 
such  as  to  satisfy  him  or  not.  The  evidence  tendered  was  for  the  pur- 
pose of  showing  that  the  bill  ought  not  to  be  read  at  all;  and  if  the 
Undersheriff  rejected  it  in  the  first  instance,  he  ought  not  to  have  re- 
ceived it  afterwards  and  submitted  it  to  the  jury.  There  ought,  there- 
fore, to  be  a  new  trial." 

Parke,  B.  :  "I  am  of  the  same  opinion.  All  preliminary  matters  of 
this  kind  are  to  be  determined  by  the  judge,  not  by  the  jury.  I  well 
recollect  the  case  of  Major  Campbell,  who  was  indicted  for  murder 
in  Ireland;  and  on  a  dying  declaration  being  tendered  in  evidence,  the 
judge  left  it  to  the  jury  to  say  whether  the  deceased  knew,  when  he 
made  it,  that  he  was  at  the  point  of  death.  The  question  as  to  the 
propriety  of  the  course  adopted  in  that  case  was  sent  over  for  the 
opinion  of  the  English  judges,  who  returned  for  answer  that  the  course 
taken  was  not  the  right  one,  and  that  the  judge  ought  to  have  decided 
the  question  himself."^ 


COMMONWEALTH  v.   ROBINSON    (1888). 
146  Mass.  511,  16  N.  E.  452. 

The  facts  of  this  case  have  been  already  stated  in  No.  48. 

C.  Allen,  J. :  "...  In  seeking  a  new  trial  on  account  of  the  ad- 
mission of  this  testimony,  the  argument  of  the  prisoner's  counsel, 
^"^  briefly  stated,  is  as  follows:  Preliminary  evidence  must  be 
given  to  show  that  the  acts  offered  to  be  proved  were  done  in  pur- 
suance and  as  a  part  of  some  plan  or  scheme  to  accomplish  the  par- 
ticular result;  it  is  the  exclusive  province  of  the  Court  to  determine 
if  such  evidence  is  sufficient;  the  decision  of  the  Court,  admitting  the 
evidence,  is  subject  to  revision  in  the  present  case,  the  testimony  upon 
which  that  decision  was  founded  having  been  reported  for  the  pur- 
pose ;  it  is  not  enough  that  there  was  some  evidence,  but  the  pre- 
liminary evidence  must  amount  to  proof;  the  ruling  of  the  Court  did 
not  expressly  affirm  the  necessity  of  such  proof,  that  is,  as  we  under- 
stand the  argument,  the  necessity  of  such  amount  or  degree  of  proof; 
and  finally,  this  Court,  upon  a  revision  of  the  preliminary  evidence 
reported,  should  now  hold  that  it  was  not  sufficient  to  warrant  the  in- 
troduction of  evidence  to  show  that  the  prisoner  poisoned  her  sister, 
Mrs.  Freeman.  The  last  three  of  these  propositions  are  the  only  ones 
which  need  any  further  attention. 

"A  consideration  of  the  nature  of  the  question  which  is  presented 

I — Compare      the      following      phrasing:  when    presented   in    the    form    of   the    pre- 

Bartlett    v.     Hoyt,     33     N.     H.     151,     165  liminary   inquiry  as   to   the  competency   of 

(1856):    "Whether    a   witness    is    interested  witness,   may  be   determined   by  the  Court, 

upon    this    or   that   given    state    of    facts   is  or,   in   the   exercise   of  their  discretion,   by 

a  question   of  law   for  the   Court;    whether  the   jury." 

the    facts    exist    as    claimed    by    one    party  Compare    the   authorities   cited    in    W.,   { 

or  the   other  is  a  question   of   fact,   which,  255°. 


736  JUDGE   AND    JURY.  No.  628. 

to  the  Court,  when  it  is  called  upon  to  decide  upon  a  preliminary  ques- 
tion of  fact,  in  order  to  determine  whether  offered  evidence  shall  be 
received,  will  show  that  its  determination  reaches  no  further  than 
merely  to  decide  whether  the  evidence  may  or  may  not  go  to  the  jury. 
The  decision  upon  this  particular  question  of  the  admissibility  of  the 
evidence  is  ordinarily  conclusive,  unless  the  judge  sees  fit  to  reserve 
or  report  the  question  for  future  revision.  But  where,  in  a  case  like 
the  present,  the  admissibility  of  testimony  depends  upon  the  determina- 
tion of  some  prior  fact  by  the  Court,  there  is  no  rule  of  law  that,  in 
order  to  render  the  testimony  admissible,  such  prior  fact  must  be 
established  by  a  weight  of  evidence  which  will  amount  to  a  demonstra- 
tion, and  shut  out  all  doubt  or  question  of  its  existence.  It  is  only 
necessary  that  there  should  be  so  much  evidence  as  to  make  it  proper 
to  submit  the  whole  evidence  to  the  jury.  The  fact  of  the  admission 
of  the  evidence  by  the  judge  does  not  in  a  legal  sense  give  it  any 
greater  weight  with  the  jury;  it  does  not"  affect  the  burden  of  proof, 
or  change  the  duty  of  the  jury  in  weighing  the  whole  evidence.  They 
must  still  be  satisfied,  in  a  criminal  case,  upon  the  whole  evidence,  be- 
yond a  reasonable  doubt. 

"Ordinarily,  questions  of  fact  are  exclusively  for  the  jury,  and 
questions  of  law  for  the  Court.  But  when,  in  order  to  pass  upon  the 
admissibility  of  evidence,  the  determination  of  a  preliminary  question 
of  fact  is  necessary,  the  Court  in  the  due  and  orderly  course  of  the 
trial  must  necessarily  determine  it,  as  far  as  is  necessary  for  that  pur- 
pose, and  usually  without  the  assistance,  at  the  stage,  of  the  jury.  .  .  . 
In  all  such  cases,  the  Court,  in  deciding  to  admit  the  offered  testi- 
mony, does  no  more  than  to  hold  that  enough  has  been  shown  to  make 
it  proper  to  submit  the  testimony  to  the  jury,  leaving  its  weight  and 
credit  for  their  determination.  The  decision  of  the  judge  does  not  re- 
lieve the  party  offering  the  testimony  from  the  necessity  of  establishing 
every  material  lact  to  the  satisfaction  of  the  jury.  In  this  view  of  the 
law,  it  was  not  necessary  that  the  Court  should  find  that  the  prelim- 
inary evidence  amounted  to  full  proof,  beyond  a  reasonable  doubt,  that 
the  prisoner  poisoned  her  sister  in  pursuance  of  a  general  plan  or 
scheme,  in  which  the  poisoning  of  Mr.  Freeman  was  a  later  step." 


BRIDGES  v.  NORTH  LONDON  R.  CO.    (1874). 
L.  R.  7  H.  L.  213. 

Action  for  damages  for  negligence  in  causing  the  death  of  the 
plaintiff's  husband.  Plea,  not  guilty.  The  cause  was  heard  before 
Mr.  Justice  Blackburn  at  the  Middlesex  Sittings  after  Michael- 
®^^  mas  Term,  1869.  Mr.  Bridges,  who  resided  at  Highbury,  had 
been  a  season  ticket-holder  on  this  railway  for  some  time,  going  daily 
between  that  place  and  Broad  Street,  the  City  terminus  of  the   rail- 


No.  629.  LAW  AND  FACT.  737 

way.  He  was  fifty-two  years  of  age,  and  very  near  sighted.  On  the 
20th  of  January,  1869,  he  left  Broad  Street  at  6:40  p.  m.  He  was  m 
the  last  passenger  carriage  of  the  train,  the  very  last  carriage  being 
the  guard's  compartment.  The  train  arrived  at  Highbury  at  a  few 
minutes  before  7  o'clock.  The  tunnel  was  filled  with  steam,  the  night 
being  damp.  The  station  at  Highbury  appeared,  from  the  statement 
in  the  case  prepared  for  the  Exchequer  Chamber,  to  be  thus  formed: 
Approaching  the  station  from  London  there  is  a  tunnel  about  150  feet 
in  length ;  there  is  a  slope,  on  which  was  lying  a  heap  of  hard  rubbish, 
and  then  a  platform,  which  is,  in  fact,  a  continuation  of  the  station 
platform,  but  is  narrower,  and  is  within  the  tunnel.  After  getting 
through  the  tunnel  there  is  the  proper  station  platform.  The  station 
is  lighted.  There  is  a  lamp  at  the  station  end  of  the  tunnel,  but  none 
within  the  tunnel  itself.  On  this  occasion  the  train  only  partially 
came  up  to  the  station  platform,  the  last  two  carriages  being  within 
the  tunnel.  The  last  but  one  stopped  opposite  the  narrow  end  of  the 
platform ;  the  last,  in  which  Mr.  Bridges  was  riding,  was  opposite  the 
heap  of  hard  rubbish.  A  passenger  (afterwards  called  as  a  witness 
at  the  trial),  who  was  in  the  last  carriage  but  one,  heard  the  name  of 
the  station  called  out  in  the  usual  way  and  got  out ;  he  alighted  on 
the  narrow  platform;  "after  he  got  out  he  heard  the  warning,  'Keep 
your  seats,'  after  which  the  train  moved  on  to  the  station.  The  wit- 
ness hearing  a  groan,  proceeded  farther  back  into  the  tunnel,  and 
found  the  deceased  lying  with  his  legs  across  the  rails,  between  the 
wheels  of  the  carriage,  and  his  body  on  the  rubbish.  The  wheels  had 
not  touched  his  legs  or  body.  He  was  lying  about  ten  feet  from  the 
end  of  the  slope,  and  farther  within  the  tunnel."  His  leg  was  broken, 
and  he  had  received  mortal  internal  injuries  from  the  fall. 

Mr.  Justice  Blackburn  was  of  opinion  that  there  was  no  evidence 
of  negligence  on  the  part  of  the  defendants,  and  directed  a  nonsuit; 
but  the  jury  expressing  a  strong  opinion  to  the  contrary,  a  verdict 
was  taken  for  the  plaintiff,  the  jury  assessing  the  damages  at  £1200. 
The  nonsuit  was  then  entered,  but  leave  was  reserved  to  move  to  enter 
the  verdict  for  the  plaintiff  for  the  damages  thus  contingently  assessed. 
A  rule  was  accordingly  moved  for,  and,  after  argument  in  the  Court 
of  Queen's  Bench,  was  refused.  On  appeal  to  the  Exchequer  Chamber 
the  facts  were  stated  in  a  case,  power  being  reserved  to  the  judges  to 
draw  inferences  of  fact.  The  case  was  heard,  and  the  judgment  of  the 
Court  below  was  affirmed  by  four  judges  to  three.  This  appeal  was 
then  brought.  The  judges  were  summoned,  and  Lord  Chief  Baron 
Kelly,  Mr.  Baron  Martin,  Mr.  Justice  Keating,  Mr.  Justice  Brett, 
Mr  Justice  Denman,  and  Mr.  Baron  Pollock  attended. 

Lord  Cairns,  who  presided  in  the  absence  of  the  Lord  Chancellor, 
proposed  that  the  following  question  should  be  put  to  the  judges: 
Whether  in  the  facts  stated  in  the  special  case,  and  having  regard  to 
the  liberty  thereby  given  to  the  Court  to  draw  any  inference  or  find 
any  facts  from  the  facts  therein  stated,  there  was  evidence  of  negli- 


738  JUDGE   AND   JURY.  No.  629 

gence  on  the  part  of  the  respondents  which  ought  to  have  been  left  to 
the  jury?  The  Lord  Chief  Baron  requested  time  for  the  judges  to 
answer  the  question. 

Mr.  Baron  Pollock:  "My  answer  to  your  Lordships'  question  is 
in  the  affirmative.  [After  having  stated  the  facts  of  the  case,]  .  .  . 
The  general  rule  which  prescribes  the  duty  of  the  judge  presiding  at 
Nisi  Prius,  when  the  question  is  raised  whether,  at  the  close  of  the 
plaintiff's  case,  there  is  evidence  which  ought  to  be  left  to  a  jury,  is 
laid  down  in  the  judgment  of  the  Court  of  Exchequer  Chamber  in 
Ryder  v.  Wombwell,  Law  Rep.  4  Ex.  32,  38,  where  the  question  being 
whether  articles  supplied  by  the  plaintiff  to  the  defendant,  who  was  an 
infant,  were  'necessaries,'  the  Court  said:  'The  first  question  is, 
whether  there  was  any  evidence  to  go  to  the  jury  that  either  of  the 
above  articles  was  of  that  description?  Such  a  question  is  one  of 
mixed  law  and  fact;  in  so  far  as  it  is  a  question  of  fact  it  must  be  de- 
termined by  a  jury,  subject  no  doubt  to  the  control  of  the  Court,  who 
may  set  aside  the  verdict  and  submit  the  question  to  the  decision  of 
another  jury;  but  there  is  in  every  case,  not  merely  in  those  arising 
on  a  plea  of  infancy,  a  preliminary  question  which  is  one  of  law, 
namely,  whether  there  is  any  evidence  on  which  the  jury  could  properly 
find  the  question  for  the  party  on  whom  the  onus  of  proof  lies.  If 
there  is  not,  the  judge  ought  to  withdraw  the  question  from  the  jury 
and  direct  a  nonsuit  if  the  onus  is  on  the  plaintiff,  or  direct  a  verdict 
for  the  plaintiff  if  the  onus  is  on  the  defendant.'  This  is  a  clear  ex- 
position of  the  rule,  and  it  has  been  generally  acquiesced  in  and  acted 
upon,  and  it  follows  from  it  that  although  the  question  of  negligence 
or  no  negligence  is  usually  one  of  pure  fact,  and  therefore  for  the 
jury,  it  is  the  duty  of  the  judge  to  keep  in  view  a  distinct  legal  defini- 
tion of  negligence  as  applicable  to  the  particular  case;  and  if  the  facts 
proved  by  the  plaintiff  do  not,  whatever  view  can  be  reasonably  taken 
of  them,  or  inference  drawn  from  them  by  the  jurors,  present  an 
hypothesis  which  comes  within  that  legal  definition,  then  to  withdraw 
them  from  their  consideration. 

"I  commence,  therefore,  by  considering  what  was  the  duty  of  the 
defendants  towards  their  passengers  upon  the  occasion  in  question,  the 
non-observance  of  which  would  constitute  negligence.  .  .  .  [Here  the 
learned  judge  examined  the  facts  and  the  possible  inferences  in  detail, 
and  continued :] 

"The  plaintiff  no  doubt  is  bound  to  make  out  her  case,  and  cannot 
by  a  bare  suggestion  challenge  its  rebuttal,  and  if  what  I  have  stated 
was  all  mere  speculation,  it  ought  not  to  have  gone  to  the  jury.  But 
if  it  was  an  inference  which  could  be  fairly  drawn  from  the  facts 
proved  in  the  same  manner  as  things  unseen  or  unproved — which  in 
the  eye  of  the  law  are  the  same — are  constantly  inferred  and  found 
as  facts  by  a  jury,  then  the  evidence  should  have  been  submitted  to 
the  jury,  together  with  any  which  the  defendants  chose  to  adduce,  and 
which   might   have    exculpated   or    further    inculpated   them   according 


No.  630.  LAW   AND  FACT.  739 

as  their  witnesses  knew  more  of  the  occurrence,  and  confirmed  or  dis- 
placed the  evidence   for  the  plaintiff."^ 


STATE  V.  MOSES   (1830). 
2  Dev.  45P,  458. 

Indictment  for  murder  by  shooting.  The  counsel  for  the  prisoner 
placed  his  defence  upon  the  total  want  of  credibility  in  the  witnesses 
for  the  prosecution.  It  was  argued,  first,  that  the  testimony  of  the 
"'*^  principal  witness  was  not  credible  from  its  absurdity,  for  how  could 
a  man  in  a  dark  night,  at  the  distance  of  ten  steps,  see  another  pull  the 
trigger  of  a  gun.  .  .  .  His  honor,  in  his  charge  to  the  jury,  informed 
then  that  the  credit  they  would  give  to  the  testimony  was  a  matter 
exclusively  with  them,  and  proceeded  to  suggest  such  circumstances 
as,  in  his  opinion,  might  be  considered  by  them  as  tending  to  shake  or 
support  the  credit  of  the  witness  for  the  State,  and  leaving  it  also  to 
them  to  give  such  weight  to  any  other  circumstances,  which  they  might 
remember  and  the  Judge  should  omit,  as  they  thought  proper.  In 
speaking  of  the  first  objection,  the  (Judge  said,  that  a  man  might  see 
by  the  flash  of  a  gun,  even  in  the  night  and  probably  the  darker  the 
night  the  more  distinctly ;  and  if  they  believed  from  the  testimony, 
that  was  the  case  in  the  present  instance,  and  that  seeing  a  man  in  the 
attitude  of  shooting,  with  his  hand  upon  the  trigger,  and  even  by  the 
flash  of  the  gun,  was  substantially  seeing  him  pull  the  trigger;  and  that 
if  this  was  the  fact  in  the  particular  .case,  then  the  contradiction  relied 
upon  in  the  testimony  of  the  witness  did  not  exist.  .  .  .  The  jury  re- 
turned a  verdict  of  guilty,  upon  which,  the  counsel  for  the  prisoner 
obtained  a  rule  for  a  new  trial,  for  misdirection.  .  .  . 

RuFFiN,  J.:  "The  Act  of  1796,  (Rev.  c.  452,)  'to  direct  the  con- 
duct of  Judges  in  charges  to  the  petit  jury,'  restrains  the  judge  from 
giving  an  opinion  whether  a  fact  is  fully  or  sufficiently  proved.  At  the 
same  time,  it  imposes  another  duty ;  which  is,  to  state,  in  a  full  and 
explicit  manner,  the  facts  given  in  evidence,  and  declare  and  explain 
the  law  arising  thereon.  ,  .  .  An  unfair  and  partial  e.xhibition  of  the 
testimony  can  alone  be  complained  of;  and  the  apprehension  of  that 
seems  to  have  induced  the  passage  of  the  law  under  consideration.  It 
is  not  for  us  to  say,  whether  that  apprehension  was  well  or  ill  founded; 
or  whether  the  administration  of  the  law  would  not  be  more  certain, 
its  tribunals  more  revered,  and  the  suitors  better  satisfied,  if  the 
Judge  were  required  to  submit  his  view  upon  the  whole  case,  and  after 
the  able  and  ingenious,  but  interested  and  partial  arguments  of  Coun- 
sel, to  follow  with  his  own  calm,  discreet,  sensible  and  impartial  sum- 
mary of  the  case,  including  both  law  and  fact.     Such  elucidations  from 

I— Compare   the   doctrine    of   Xo.    2.   ante:    and   the   authorities  cited   in   \V.,   §   2552. 


740  JUDGE   AND    JURY.  No.  630. 

an  upright,  learned  and  discreet  magistrate,  habituated  to  the  investiga- 
tion of  compHcated  masses  of  testimony,  often  contradictory,  and  often 
apparently  so  but  really  reconcilable,  would  be  of  infinite  utility  to  a 
conscientious  jury  in  arriving  at  just  conclusions — not  by  force  of  the 
Judge's  opinion,  but  of  the  reasons  on  virhich  it  v^^as  founded,  and  on 
which  the  jury  would  still  have  to  pass.  If  this  duty  were  imposed  on 
the  Judge,  it  is  not  to  be  questioned,  that  success  would,  oftener  than 
it  does,  depend  on  the  justice  of  the  case,  rather  than  the  ability  or 
adroitness  of  the  advocate. 

"But  such  is  certainly  neither  the  duty  nor  within  the  competency 
of  our  Judges.  I  have  already  mentioned  that  it  v/ould  be  difficult  for 
a  Judge,  surrounded  by  all  the  circumstances,  to  determine  exactly 
what  is  his  duty  in  this  respect,  in  law  and  his  own  conscience.  With 
still  less  certainty  can  a  revising  court  lay  down  any  rules  o  priori,  or 
even  apply  them,  after  they  are  prescribed  to  cases  as  they  arise.  So 
much  of  the  meaning  of  words  depends  upon  their  context,  and  of 
words  spoken,  upon  the  tone,  emphasis,  temper,  and  manner  of  the 
speaker,  that  it  is  utterly  impossible  that  the  whole  can  be  transferred 
to  paper,  so  as  to  enable  an  appellate  tribunal  to  pass  in  general  upon 
cases,  without  imminent  hazard  of  doing  injustice  to  the  parties,  and 
casting  unmerited  reproach  upon  the  intentions  of  the  Judge,  and  the 
understanding  of  the  jury.  If  I  were  to  lay  down  a  rule  as  growing 
out  of  this  Act  of  Assembly,  I  would  say,  that  it  was  in  general  this : 
That  the  weight  of  the  evidence  is  for  the  jury;  they  hold  the  scales 
for  that.  But  the  nature,  relevancy  and  tendency  of  the  evidence,  it 
is  competent  for  the  Judge  and  his  duty  to  explain.  He  is  not  only  to 
recapitulate  the  testimony,  but  to  show  what  it  tends  to  prove,  and 
he  may  recapitulate  it  in  such  order  and  connexion,  as  to  give  it  the 
effect  of  proving  the  fact  sought  for,  if  in  itself  it  be  sufficient  for 
that  purpose.  Whether  it  be  sufficient,  it  is  the  province  of  the  jury 
to  determine,  and  by  this  statute  it  is  their  exclusive  province;  and 
the  Judge  cannot  give  his  opinion  in  aid  of  theirs,  that  it  is,  or  is  not 
sufficient.  .  .  . 

"To  apply  these  observations  to  the  case  before  us:  It  is  objected 
here,  that  the  Court  below  assumed  the  power  of  expressing  an  opinion 
upon  the  facts,  or  expressed  such  forced  inferences  from  the  testimony, 
as  might  bias  the  minds  of  the  jury.  The  facts  to  which  those  parts 
of  the  charge  apply^  where  the  credit  due  to  several  witnesses.  The 
main  fact  in  dispute,  on  which  the  issue  was  joined,  was  the  guilt  or 
innocence  of  the  prisoner.  This  depended  upon  the  subordinate  facts 
of  the  veracity  or  falsehood  of  the  tales  of  the  witnesses.  Now  this 
last  fact — of  credibility,  or  the  want  of  it — rested  again  upon  other 
facts  which  tended  to  sap  or  sustain  it.  .  .  .  In  charging  the  jury,  the 
judge  is  not  obliged  to  confine  himself  to  delivering  the  abstract  rule, 
that  a  witness  does  impair  his  credit  by  refusing  to  give  full  evidence; 
but  may,  and  ought  also  to  call  the  attention  of  the  jury  to  the  specific 
misbehavior  before  their  own  eyes,  a  fact  in  evidence  to  him  and  them. 


1 


No.  631.  LAW  AND  FACT.  741 

Again,  if  the  credit  of  one  witness  is  assailed  upon  the  ground  that  he 
is  contradicted  by  two  others,  is  the  Court  barely  to  inform  the  jury, 
that  if  such  contradiction  exist,  it  may  impair  the  credit  of  the  first 
witness,  but  that  they  have  the  right  in  law  to  reconcile  the  testimony, 
and  then  act  on  it  ?  Or  may  he  not  mention  to  them  the  circumstances, 
and  show  how  they  are  contradictory,  or  how  reconcilable,  leaving  it 
to  the  jury,  to  say,  whether  in  truth,  the  two  tales  do,  or  do  not 
stand  together,  according  to  the  parts  of  the  transaction  to  which  they 
relate,  or  to  the  meaning  of  the  witnesses?  Such  a  course  as  this 
last,  seems  to  me  to  be  right,  useful  and  lawful.  .  .  . 

"In  like  manner,  the  other  exceptions  are  readily  disposed  of,  with- 
out my  going  through  them  in  detail.  The  whole  are  regarded  as 
mere  suggestions  by  the  Judge  to  the  jury,  o*^  the  construction  of  which 
the  words  of  the  witnesses  are  susceptible,  or  the  inferences  which 
could  be  deduced  from  admitted  or  hypothetical  facts;  in  each  case 
leaving  it  to  the  jury  to  say,  what  was  the  true  construction,  or  the  true 
inference.  I  think  this  is  the  legitimate  province  of  a  Judge,  within 
the  statute  under  consideration.  If  I  err,  the  charge  of  the  Judge 
is  an  empty  pageant,  and  ceremonial  mockery,  which  may  serve  for  the 
amusement  of  the  crowd,  but  instead  of  aiding  the  jury,  by  rescuing 
the  case  from  the  false  glosses  of  powerful  advocates,  and  the  mis- 
conception of  the  evidence,  as  applicable  to  the  legal  controversy,  will 
but  confound  the  jury,  and  still  further  obscure  the  truth. "^ 


.  COMMONWEALTH  v.  PORTER  (1846). 
10  Mete.  26 J. 

Shaw,  C,  J. :  "This  case  comes  before  the  Court  upon  a  bill  of 
exceptions,  and  the  question  is,  whether,  in  a  criminal  prosecution 
against  the  defendant  for  an  alleged  violation  of  the  license 
"''^  laws,  his  counsel  have  a  right  to  address  the  jury  upon  the 
questions  of  law  embraced  in  the  issue.  The  effect  of  the  argument 
for  the  defendant,  when  analyzed,  appears  to  be  this ;  that  in  criminal 
prosecutions,  it  is  within  the  legitimate  right  and  proper  duty  of  juries, 
to  adjudicate  and  decide  on  questions  of  law  as  well  as  questions  of 
fact ;  and  that  although  the  judge  may  instruct  and  direct  them  upon  a 
question  of  law,  and  they  fully  comprehend  and  understand  those  direc- 
tions, in  their  application  to  the  facts  of  the  case,  yet  that  they  are  in- 
vested by  law  with  a  legitimate  power  and  authority,  if  their  judg- 
ments do  not  coincide  with  that  of  the  judge,  to  disregard  it,  and  de- 
cide in  conformity  with  their  own  views  of  the  law.  If  this  were  a 
correct  view  of  the  law,  it  would  undoubtedly  follow,  as  a  necessary 
consequence,  that  in  such  appeal  from  the  Court  to  the  jury,  the  counsel 
on  both  sides  would  have  a  right  to  argue  the  questions  of  law  to  the 

2 — Compare    the    following:       Vlcksburg        i     (i886>;    Thayer,     Preliminary     Treatise 
R.   Co.   V.   Putnam,    ii8  U.   S.   S4S.   7   Sup.        on    Evidence,     i88. 


742  JUDGE    AND    JURY.  No  ,631. 

jury.  But  if  this  proposition  is  not  correct,  it  does  not  follow,  we  think, 
as  a  necessary  consequence,  that  the  counsel  cannot  address  the  jury 
upon  the  law^  under  the  direction  of  the  court.  They  are,  in  our  view, 
separate  and   distinct   questions,   to   be  separately   considered. 

"We  consider  it  a  well-settled  principle  and  rule,  lying  at  the 
foundation  of  jury  trial,  admitted  and  recognized  ever  since  jury  trial 
has  been  adopted  as  an  established  and  settled  mode  of  proceeding  in 
courts  of  justice,  that  it  is  the  proper  province  and  duty  of  judges  to 
consider  and  decide  all  questions  of  law  which  arise,  and  that  the 
responsibility  of  a  correct  decision  is  placed  finally  on  them;  that  it 
is  the  proper  province  and  duty  of  the  jury  to  weigh  and  consider  evi- 
dence, and  decide  all  questions  of  fact,  and  that  the  responsibility  of  a 
correct  decision  is  placed  upon  them.  And  the  safety,  efficacy,  and 
purity  of  jury  trial  depend  upon  the  steady  maintenance  and  practical 
application  of  this  principle.  It  would  be  alike  a  usurpation  of  au- 
thority and  violation  of  duty,  for  a  court,  on  a  jury  trial,  to  decide 
authoritatively  on  the  questions  of  fact,  and  for  the  jury  to  decide 
ultimately  and  authoritatively  upon  the  questions  of  law.  And  the 
obligations  of  each  are  of  a  like  nature,  being  that  of  a  high  legal  and 
moral  obligation  to  the  performance  of  an  important  duty,  enforced  and 
sanctioned  by   an  oath.  .  .  . 

"The  whole  doctrine  of  bills  of  exception,  now  in  such  general 
and  familiar  use,  both  in  civil  and  criminal  proceedings,  is  founded 
upon  the  same  great  and  leading  idea.  It  presupposes  that  it  is  within 
the  authority,  and  that  it  is  the  duty  of  the  judge  to  instruct  and  direct 
the  jury  authoritatively,  upon  such  questions  of  law  as  may  seem  to 
him  to  be  material  for  the  jury  to  understand  and  apply,  in  the  issue 
to  be  tried;  and  he  may  also  be  required  so  to  instruct  upon  any  per- 
tinent question  of  law  within  the  issue,  upon  which  either  party  may  re- 
quest him  to  instruct.  The  doctrine  also  assumes  that  the  jury  under- 
stand and  follow  such  instruction  in  matter  of  law.  This  results  from 
the  consideration,  that  if  such  instruction  be  either  given  or  refused,  it 
is  the  duty  of  the  judge  to  state  it  in  a  bill  of  exceptions,  so  that  it  may 
be  placed  on  the  record ;  and  if  the  verdict  is  against  the  party  who 
took  the  exception,  and  it  appears,  upon  a  revision  of  the  point  of  law, 
that  the  decision  is  incorrect,  either  in  giving  or  refusing  such  in- 
struction, the  verdict  is  set  aside,  as  a  matter  of  course.  To  this  con- 
clusion the  law  could  come,  only  on  the  assumption  that  it  was  the 
right  and  duty  of  the  court  to  instruct  the  jury  in  matter  of  law,  that 
the  jury  understood  it,  and,  as  a  matter  of  duty,  were  bound  to  follow 
it;  so  that,  if  the  instruction  was  wrong,  the  law  assumes,  as  a  neces- 
sary legal  consequence,  that  the  verdict  was  wrong,  and  sets  it  aside. 
The  law  could  only  assume  this,  upon  the  strength  of  the  well  known 
and  reasonable  presumption,  that  all  persons,  in  the  absence  of  proof  to 
the  contrary,  do  that  which  it  is  their  duty  to  do.  It  is  presumed  that 
the  jury  followed  the  instruction  of  the  Court  in  matter  of  law,  because 
it  was  their  duty  so  to  do,  and  therefore,  if  the  instruction  was  wrong. 


I 


No.   631.  LAW   AND  FACT.  743 

the  verdict  is  wrong.  But  if  the  jury  could  rightly  exercise  their  own 
judgment,  and  decide  contrary  to  the  direction  of  the  Court,  as  they 
unquestionably  may  do,  in  regard  to  questions  of  fact,  no  such  pre- 
sumption would  follow;  it  would  be  left  entirely  in  doubt,  whether  the 
jury  had  been  misled  or  influenced  by  the  incorrect  direction  in  matter 
of  law,  and  therefore  this  would  alone  be  no  sufficient  ground  for  setting 
aside  the  verdict.  But  entirely  otherwise  it  is  in  regard  to  a  matter  of 
fact,  in  respect  to  which  it  is  within  the  proper  authority,  and  is  the 
duty  of  the  jury  to  exercise  their  judgment  authoritatively  and  defi- 
nitely. And  .should  a  judge  express  or  intimate  any  opinion  upon  a 
question  of  fact,  however  incorrect  it  might  be  afterwards  found  to  be, 
upon  a  revision  by  a  higher  Court,  it  would  not  necessarily  afford  a 
ground  for  a  new  trial;  for,  it  not  being  the  duty  of  the  jury  to  follow 
it,  there  would  be  no  presumption  that  they  had  followed  it,  and  there- 
fore it  would  not,  of  itself,  show  conclusively  that  the  verdict  was 
wrong.  .  .  . 

"[Furthermore,  looking  at  the  essential  purposes  of  a  Constitution, 
and   the   fundamental    rights    and   principles   there    guaranteed    in    solid 
permanence,]  it  appears  to  us  that  the  principle  contended  for  would  be 
adverse  to  all  these  objects.      If  a  jury  has  a  legitimate  authority  to 
decide  upon  all  questions  of  law  arising  in  the  cases  before  them,  and 
that  contrary  to  the  instruction  of  the  judge,  in  cases  where  such  di- 
rection of  the  judge  may  be  supposed  adverse  to  the  views  of  the  law 
relied  on   by   the  accused  or  his  counsel,  they   would   have  the  same 
power  to  decide  any  question  of  law,  against  the  opinion  and  instruction 
of  the  judge,  when  such  opinion  is  in  favor  of  the  accused,  and  find  him 
guilty,   where  the  judge  should  direct  the  jury  that  those  facts  which 
the  evidence  conduces  to  prove,  if  proved  to  their  satisfaction,  would 
not  warrant  a  conviction.     A  case  may  be  supposed,  at  least  for  the 
purpose  of  illustration,  where  a  high  popular  excitement  should  arise 
and  become  general,  in  which  large  bodies  of  persons  might  come  to  be 
actuated  by   feelings  of  honest  but  mistaken   indignation  against   some 
supposed   wrong,   and  earnest  in  the  pursuit  of  the  supposed  interests 
of  philanthropy ;  or  perhaps  numbers  may  be  influenced  by  more  base, 
interested,    and    vmdictive    passions.       Under    these    circumstances,    a 
grand  jury,  having,  as  the  case  supposes,  a  legitimate  and  rightful  au- 
thority to  decide  on  questions  of  law,  contrary  to  the  instructions  and 
charge  of  the  judge,  might  return  an  indictment;  a  traverse  jury,  in 
their  turn,  might  convict  upon  it,  though  the  court  before  whom  it  is 
tried   should   give  them   such  directions,   in    point  of  law,  that   if  they 
understood  and  followed  them  they  must  acquit  the  accused.      But  the 
case  supposes  that  the  law  may  be  rightfully  interpreted  by  a  jury  which 
may  shift   at  every  trial.      What  then  becomes  of  the  security  which 
every  citizen  is  entitled  to,  by  a  steady  and  uniform,  as  well  as  im- 
partial   interpretation    of    the    laws    and    administration    of    justice,    by 
judges  as  free,  impartial  and  independent  as  the  lot  of  humanity  will 
admit?  .  .  . 


744  JUDGE   AND    JURY.  No.  631. 

"  On  the  whole  subject,  the  views  of  the  Court  may  be  summarily  ex- 
pressed in  the  following  propositions  :  — 

*'  That  in  all  criminal  cases,  it  is  competent  for  the  jury,  if  they  see 
fit,  to  decide  upon  all  questions  of  fact  embraced  in  the  issue,  and  to 
refer  the  law  arising  thereon  to  the  Court,  in  the  form  of  a  special 
verdict. 

"  But  it  is  optional  with  the  jury  thus  to  return  a  special  verdict  or 
not,  and  it  is  within  their  legitimate  province  and  power  to  return  a 
general  verdict,  if  they  see  fit. 

"In  thus  rendering  a  general  verdict,  the  jury  must  necessarily 
pass  upon  the  whole  issue,  compounded  of  the  law  and  of  the  fact,  and 
they  may  thus  incidentally  pass  on  questions  of  law. 

"  In  forming  and  returning  such  general  verdict,  it  is  within  the 
legitimate  authority  and  power  of  the  jury  to  decide  definitely  upon  all 
questions  of  fact  involved  in  the  issue,  according  to  their  judgment, 
upon  the  force  and  effect  of  the  competent  evidence  laid  before  them  ; 
and  if  in  the  progress  of  the  trial,  or  in  the  summing  up  and  charge  to 
the  jury,  the  Court  should  express  or  intimate  any  opinion  upon  any 
such  question  of  fact,  it  is  within  the  legitimate  province  of  the  jury 
to  revise,  reconsider,  and  decide  contrary  to  such  opinion,  if,  in  their 
judgment,  it  is  not  correct  and  warranted  by  the  evidence. 

"  But  it  is  the  duty  of  the  Court  to  instruct  the  jury  on  all  questions 
of  law  which  appear  to  arise  in  the  cause,  and  also  upon  all  questions, 
pertinent  to  the  issue,  upon  which  either  party  may  request  the  direction 
of  the  court,  upon  matters  of  law.  And  it  is  the  duty  of  the  jury  to 
receive  the  law  from  the  Court,  and  to  conform  their  judgment  and 
decision  to  such  instructions,  as  far  as  they  understand  them,  in  apply- 
ing the  law  to  the  facts  to  be  found  by  them ;  and  it  is  not  within  the 
legitimate  province  of  the  jury  to  revise,  reconsider,  or  decide  contrary 
to  such  opinion  or  direction  of  the  Court  in  matter  of  law.  To  this 
duty  jurors  are  bound  by  a  strong  social  and  moral  obligation,  enforced 
by  the  sanction  of  an  oath,  to  the  same  extent,  and  in  the  same  manner, 
as  they  are  conscientiously  bound  to  decide  all  questions  of  fact  accord- 
ing to  the  evidence."* 


HUTCHISON  V.  BOWKER  (1839). 
5  M.  &  W.  535,  541. 

Assumpsit  for  the  non-delivery  of  barley.     Plea,  non  assumpsit.    At 

the  trial  before  Lord  Abinger,  C.  B.,  it  appeared  that  the  action  was 

brought  by  the  plaintiff's,  who  were  corn  merchants  and  factors 

^^^      at  Kirkaldy,  in  Fifeshire,  to  recover  from  the  defendants,  who 

were  corn  merchants  at  Lynn,  damages  for  the  non-performance  of  a 

I — Compare  the  authorities  cited  in  W.,  For  proof  of  foreign  law,  compare  No. 

§    2559;    and   No.    573    ante,    and  No.   639,        639,  post. 

post. 


No.  632.  LAW  AND  FACT.  745 

contract  to  supply  400  quarters  of  barley.      To  prove  the  contract,  the 
following  letters  were  given  in  evidence : 

"Lynn,  21  st  Nov.,  1838. 
"Messrs.   Rt.   Hutchison  &  Co.,  Kirkaldy. 
"Gentlemen : 

"In  reply  to  your  favor  of  17th  inst.,  we  beg  to  offer  you  a 
cargo  of  about  400  qrs.  of  good  barley,  weighing  52lbs.  per  bl.,  at  34J. 
per  qr.  on  board.  .  .  .  Your  most  obedient  servants, 

"A.   &  J.    BOWKER." 

To  this  letter  the  plaintiffs  returned  the  following  answer: 

Kirkaldy,  24th  Nov.,  1838. 
"Messrs.  A.  &  J.  Bowker,  Lynn. 
"Gentlemen : 

"We  hav^  your  favor  of  21st  current,  offering  400qrs.  good 
barley,  52lbs.  per  bl.,  at  34.?.  per  qr.  f.  o.  b.,  payment  in  full  by 
banker's  bill  at  two  months,  on  receipt  of  bill  of  lading  and  invoice: 
of  such  offer  we  accept,  expecting  you  will  give  us  fine  barley  and  full 
weight.  ... 

"We   remain,  gentlemen, 

"Your  most  obedient  servants, 

"RoBT.  Hutchison  &  Co." 

The  defendant  declined  to  ship  "fine  barley."  Evidence  was  given 
at  the  trial  to  show  that  the  phrases  "good"  barley  and  "fine"  barley 
were  terms  well  known  in  the  trade,  and  that  fine  barley  was  the 
heavier.  The  jury  at  first  found  a  verdict  for  the  plaintiffs  generally, 
stating  their  opinion  to  be,  that  "the  difference  was  in  weight,  and  that 
barley  would  be  fine  and  good  at  52lbs.  per  bushel."  The  learned 
Judge  asked  them  to  reconsider  the  verdict,  and  answer  this  question, 
whether  there  was  a  distinction  in  the  corn  trade  between  "good"  and 
"fine"?  And  they  then  found  that  there  was  a  difference  between  good 
and  fine,  but  that  the  parties  did  not  understand  each  other ;  and  they  re- 
turned a  verdict  for  the  plaintiffs,  damages  30/.  Cresswell  having 
on  a  former  day  obtained  a  rule  to  show  cause  why  this  verdict  should 
not  be  set  aside,  and  a  nonsuit  entered, 

Sir  F.  Pollock  (W.  H.  Watson  with  him)  now  showed  cause. 
".  .  .  The  words  have  either  a  general  or  a  technical  meaning.  It  was 
Ifound  that  the  word  'fine'  had  a  technical  meaning,  and  the  obscurity 
*is  removed  by  the  verdict.  The  jury  thought  that  on  this  contract 
Ithere  could  be  no  misunderstanding  amongst  merchants.  It  was  a 
question  to  be  left  to  the  jury,  what  was  the  meaning  of  the  word 
•■fine'  in  the  contract.  [Parke,  B.:  "You  may  ask  the  jury  the 
(meaning  of  the  word  'fine'  in  a  mercantile  sense,  but  you  cannot  go 
Jfurther.    The  Court  is  to  say  what  is  the  meaning  of  the  contract,  and 


746  JUDGE   AND   JURY.  No.  632. 

whether  there  has  been  an  acceptance  of  it."]  ...  It  is  admitted  that 
when  the  words  of  a  contract  are  clear  and  unambiguous,  it  is  for  the 
Court  to  put  a  construction  upon  it;  but  where  the  words  are  either  un- 
intelligible, or  have  both  a  popular  and  a  technical  meaning,  it  is  for  the 
jury  to  say  whether  the  words  were  used  in  a  technical  or  ordinary 
sense." 

Lord  Abinger^  C.  B.  :  "It  appears  to  me  that  the  question  as  to  the 
interpretation  of  this  contract  is  a  question  entirely  for  the  Court,  and 
not  for  the  jury.  That  they  should  ever  be  the  judges  on  such  a  mat- 
ter was  founded  on  this,  that  there  might  be  technical  words  used  in  a 
contract,  which  the  jury  might  understand,  and  the  Court  might  not; 
but  it  would  be  contrary  to  all  practice  to  say,  after  the  terms  are  ex- 
plained to  the  satisfaction  of  the  Court,  that  the  jury  are  to  have  the 
interpretation  of  the  contract,  and  not  the  Court.  ...  In  this  case,  if 
they  had  said  they  were  satisfied  that  there  was  no  difference  in  the 
words,  I  should  then  have  directed  them  to  find  for  the  plaintiffs;  but 
they  told  me  they  were  of  opinion  that  there  was  a  difference  in  the 
words,  but  they  did  not  think  the  contract  should  be  interpreted  with 
reference  to  that  distinction,  as  the  parties  did  not  understand  each 
other.  I  think  that  they  had  no  right  to  assume  that.  .  .  .  The  mean- 
ing, therefore,  being  left  ambiguous.  I  am  of  opinion  that  this  rule 
ought  to  be  made  absolute." 

Parke,  B.  :  "I  am  of  the  same  opinion.  .  .  .  The  law  I  take  to  be 
this, — that  it  is  the  duty  of  the  Court  to  construe  all  written  instru- 
ments; if  there  are  peculiar  expressions  used  in  it,  which  have,  in  par- 
ticular places  or  trades,  a  known  meaning  attached  to  them,  it  is  for  the 
jury  to  say  what  the  meaning  of  these  expressions  was,  but  for  the  Court 
to  decide  what  the  meaning  of  the  contract  was.  It  was  right,  there- 
fore, to  leave  it  to  the  jury  to  say  whether  there  was  a  peculiar  meaning 
attached  to  the  word  'fine,'  in  the  corn  market;  and  the  jury  having 
found  what  it  was,  the  question,  whether  there  was  a  complete  ac- 
ceptance by  the  written  documents  is  a  question  for  the  judge. "^ 


COMMONWEALTH  v.  ANTHES  (1855). 
5  Gray  185. 

Indictment  on  St.   1855,  c.  215,  §  17,  for  being  a  common  seller  of 

spirituous  and  intoxicating  liquors.     Trial  and  conviction  in  the  Court 

of  Common  Pleas  of  October  term  1855,  before  Sanger,  J.,  who 

^^^      signed  the  following  bill  of  exceptions:     "During  the  trial  the 

defendant's  counsel  moved  the  court  to   instruct  the  jury: — ist    That 

2 — Compare     the     following     phrasings:  than   one   occasion,   the   question    what  the 

Gassett    v.    Glazier,    165    Mass.    473,    43  contract    was,    if    controverted,    must    usu- 

N.    E.    193     (1896):      "Where    a    contract  ally  be  tried  by  the  jury  as  a  question  of 

is   to   be    gathered    from    talk    between    the  fact."  Rankin  v.  Fidelity  Ins.  T.  &  S.  D. 

parties,   and  especially   from  talk  on   more  Co.,   189   U.    S.   242,   23   Sup.    553    (1903): 


No.  633.  LAW   AND  FACT.  747 

the  law  is  unconstitutional  and  void.  2d.  That  the  jury  have  a  right 
to  judge  of  the  constitutionality  of  the  law.  3d.  That  if  the  jury 
do  so  judge,  and  have  a  reasonable  doubt  whether  the  law  be  con- 
stitutional or  not,  they  must  acquit  the  prisoner. 

"The  court  declined  so  to  instruct  the  jury,  but  did  instruct  them 
that  the  law  is  constitutional,  and  that  under  the  provisions  of  chapter 
152  of  the  statutes  of  1855,  entitled  an  act  concerning  the  duties  and 
rights  of  jurors,  although  the  jury  might  judge  of  the  meaning  of  a 
law,  they  had  not  the  right  to  judge  of  its  constitutionality."  The 
decision  was  made  at  Boston  on  the  27th  of  August,  1857. 

Shaw,  C.  J.:  "...  I  desire  however  to  refer  to  one  subject,  that  of 
libel,  which  in  some  quarters  seems  to  have  been  regarded  as  settling 
the  question,  that  in  all  criminal  cases  juries  may  rightfully  adjudicate 
upon  the  law,  as  well  as  the  fact ;  but  it  seems  to  me  so  manifestly  to 
lead  to  the  opposite  conclusion,  and  to  involve  a  discussion  of  the  true 
principle  on  which  jury  trial  is  placed  by  the  common  law,  that,  at  the 
risk  of  appearing  tedious,  I  wish  to  state  it  fully  enough  to  make  it 
intelligible. 

"This  controversy  arose  in  England  during  a  period  shortly  preceding 
the  American  Revolution,  respecting  the  relative  powers  of  courts  and 
juries,  in  cases  of  public  prosecutions  for  libel.  It  arose  in  times  of 
great  party  violence  and  heat,  connected  itself  intimately  with  the  great 
political  contests  of  the  time,  and  was  conducted  in  the  courts  of  justice, 
in  parliament,  and  in  the  country,  with  a  warmth  of  passion  not  favor- 
able to  the  satisfactory  determination  of  legal  principles.  But  it  ap- 
pears to  me  that,  whether  we  consider  the  point  upon  which  the  contro- 
versy turned,  the  principles  assumed  and  admitted  on  all  sides  as  the 
basis  of  the  argument,  or  the  provisions  of  the  Act  of  Parliament,  com- 
monly known  as  Mr.  Fox's  bill,  by  which  it  was  terminated,  they  do 
not  impugn  the  great  principle  of  the  common  law,  that  to  questions  of 
fact  the  jurors  respond,  to  questions  of  law  the  judges. 

"Criminal  prosecutions  for  libel  might,  by  the  common  law,  be  by  in- 
dictment or  information ;  but  in  point  of  fact  they  were  most  usually 
state  prosecutions,  commenced  by  information  filed  by  the  attorney  or 
solicitor  general,  ex  officio,  and  most  frequently  for  political  offences, 
and  therefore  were  often  contested  with  great  bitterness,  the  political 
parties  actively  taking  sides,  in  favor  of  the  crown  or  of  the  accused 
respectively.  The  controverted  question  arose  in  this  way:  By  the 
theory  of  the  law,  language,  the  meaning,  effect,  and  interpretation  of 
all  language,  is  of  legal  construction,  and  must  be  settled  as  matter  of 
law  by  courts.  This  rule  applied  to  statutes,  proclamations,  treaties,  and 
other  acts  of  state,  and  also  to  private  contracts  of  all  sorts;  and  this,  in 

"Although    [the  question   of]   the  construe-  mercial     character,     taken     in     eonnection 

tion   of  written   instruments  is  one   for  the  with    other    facts    and    circumstances,    it    is 

Court,  [yet]  where  the  case  turns  upon  one  which  is  properly  referred  to  a  jury." 
the   proper   conclusions   to   be    drawn    from  Compare    the    authorities    cited     in     VV., 

a  series  of  letters,   particularly   of   a  com-  §    2556. 


748  JUDGE   AND    JURY.  No.  633. 

theory,  was  considered  as  applicable  to  publications  charged  to  be  libel- 
lous. But  it  is  obvious  that  the  same  language  may  have  a  different 
meaning,  according  to  the  thing  referred  to,  from  existing  facts  or  exter- 
nal circumstances,  not  apparent  in  the  written  or  printed  publication  it- 
self. To  meet  this  view,  the  rules  of  pleading  strictly  required  that  the 
indictment  or  information  should  set  out  the  matter  charged  to  be  libel- 
lous, in  hcec  verba.  If  the  words  should  be  charged  to  have  any  peculiar 
meaning  beyond  their  ordinary  sense,  by  reason  of  any  fact,  then  such 
fact  is  to  be  distinctly  averred,  with  time  and  place,  so  that  it  may  be 
put  in  issue  and  tried.  If  it  was  relied  on  that  such  words  were  writ- 
ten or  spoken  in  connection  with  such  fact  or  circumstance,  it  must  be 
stated,  in  terms,  that  they  were  written  or  spoken  'of  and  concerning' 
such  facts,  ordinarily  styled  the  colloquium,  adding  in  all  suitable  places 
innuendoes,  pointing  the  meaning  of  the  words  to  the  particular  per- 
sons or  things  to  which  it  is  intended  to  charge  that  they  did  apply. 

"Now  the  theory  of  those  judges  who  held  that  the  jury  were  only  to 
find  the  fact  of  publication,  and  the  truth  of  the  averments,  colloquia, 
and  innuendoes,  was  this;  that  when  the  words  of  the  alleged  libel  are 
exactly  copied,  and  all  the  circumstances  and  incidents  which  can  affect 
their  meaning  are  stated  on  the  record,  inasmuch  as  the  construction 
and  interpretation  of  language,  when  thus  explained,  is  for  the  Court, 
the  question  of  the  legal  character  of  such  libel,  whether  seditious  or 
obscene,  whether  it  illegally  slanders  the  living,  or  blackens  the  mem- 
ory of  any  one  deceased,  would  be  placed  on  the  record,  and  therefore, 
as  a  question  of  law,  would  be  open  after  verdict,  on  a  motion  in  arrest 
of  judgment.  Whatever  might  be  the  verdict,  if  the  publication  thus 
spread  on  the  record,  with  its  averments,  is  not  libellous,  the  court 
must  so  declare  it.  Those  who  took  this  side  of  the  question  insisted, 
that  if  the  publication  was  per  se  libellous,  it  was  unlawful,  and  the  in- 
nocent intent  and  purpose  of  the  publisher  afforded  no  excuse,  and  if  li- 
bellous and  illegal,  the  malicious  intent  was  an  inference  of  law.  Those 
reasoners  therefore  maintained  that  a  criminal  prosecution  for  libel  was 
peculiar,  and  distinguishable  from  all  others  in  this,  that,  by  the  form 
of  proceeding,  the  whole  matter  was  spread  upon  the  record ;  that,  when 
the  fact  of  publication  and  the  truth  of  the  averments  and  innuendoes 
were  established,  the  whole  question  of  guilty  or  not,  as  in  case  of 
a  special  verdict,  was  a  question  of  law;  and  they  therefore  held  that 
it  was  right  to  instruct  the  jury  that,  if  they  found  these  facts  true, 
they  ought  to  return  a  verdict  of  guilty,  without  passing  their  judgment 
upon  the  question  of  malicious  intent  or  guilty  purpose.  These  views, 
it  was  maintained,  were  supported  by  a  series  of  respectable  authori- 
ties, nearly  or  quite  uniform,  from  the  English  Revolution  to  the  time 
of  this  controversy. 

"On  the  contrary,  it  was  maintained  by  the  popular  party,  that  such 
a  view  of  the  law  of  libel  tended  to  discourage  and  repress  all  free  and 
manly  discussion  of  public  affairs,  and  destroy  the  just  freedom  of  the 
press;  that  whether  a  publication  was  libellous  or  not,  depended  upon 


No.  633.  LAW  AND  FACT.  749 

the  justifiable  motive,  or  mischievous  intent,  with  which  it  was  written; 
that  if  it  was  fairly  intended  to  expose  and  correct  the  abuses  of  bad 
government,  or  wickedly  to  weaken  and  impair  the  acts  of  good  gov- 
ernment, that  these  were  questions  of  fact,  depending  on  many  facts 
of  a  public  nature,  which  could  not  be  brought  upon  the  record;  and 
that  therefore  the  question  whether  it  was  unlawful,  malicious,  and 
wicked,  false  in  fact,  and  not  written  with  good  motives  and  for  justifi- 
able ends,  might  even  depend  on  the  purpose  and  character  of  the  whole 
publication,  of  which  the  parts  selected  as  libellous  are  usually  extracts 
only;  that  these  are  all  facts  bearing  upon  the  general  question  of  guilt, 
and  therefore  like  other  facts,  on  which  the  guilt  of  a  party  accused  of 
crime  depends,  were  to  be  found  by  the  jury.  Some  respectable  au- 
thorities could  be  adduced  to  show  that  such  had,  at  times,  been  the 
course  of  eminent  judges  in  instructing  the  jury. 

"The  great  struggle  on  this  subject  took  place  in  the  case  of  The 
King  V.  Dean  of  St.  Asaph,  reported  most  fully  in  3  T.  R.  428,  note.  The 
case  was  tried  before  Buller,  J.,  who  charged,  in  summing  up,  that  there 
were  two  facts  for  the  consideration  of  the  jury,  namely,  the  fact  of  the 
publication,  and  the  truth  of  the  innuendoes.  It  came  before  the  full 
court,  and  was  argued  in  a  masterly  manner  for  the  defendant  by  Mr. 
Erskine,  in  one  of  his  celebrated  speeches.  The  opinion  of  the  Court 
was  given  by  Lord  Mansfield,  who  again  affirmed  the  correctness  of  the 
ruling,  and  upon  the  same  grounds,  and  he  cited  many  authorities  to 
show  that  this  had  long  been  the  established  practice.  Lord  Kenyon, 
a  few  years  later,  directed  the  jury  in  the  same  terms,  in  The  King  v. 
Withers,  3  T.  R.  428. 

"Thus  stood  the  law,  as  declared  and  administered  in  the  highest 
courts  of  Great  Britain,  until  this  remarkable  controversy  was  terminated 
by  an  Act  of  Parliament,  St.  32  G.  3,  c.  60,  which  settled  the  law  for  that 
government.  After  reciting  that  doubts  had  arisen,  it  declared  and 
enacted  that  on  every  such  trial,  the  jury  may  give  a  general  verdict  of 
guilty  or  not  guilty  upon  the  whole  matter  put  in  issue  upon  the  indict- 
ment or  information,  and  shall  not  be  required  or  directed  by  the  Court 
or  judge  to  find  the  defendant  guilty,  merely  on  proof  of  the  publication 
by  the  defendant  of  the  paper  charged  to  be  a  libel,  and  of  the  sense 
ascribed  to  the  same  in  the  indictment  or  information;  that  on  every 
such  trial,  the  Court  or  judge  shall,  according  to  their  or  his  discre- 
tion, give  their  or  his  opinion  and  directions  to  the  jury  on  the  mat- 
ter in  issue,  in  like  manner  as  in  other  criminal  cases ;  that  nothing  in 
the  Act  shall  be  construed  to  prevent  the  jury  from  finding  a  special 
verdict,  at  their  discretion,  as  in  other  criminal  cases ;  and  in  case  the 
jury  shall  find  the  defendant  guilty,  it  shall  be  lawful  for  him  to  move 
in  arrest  of  judgment,  on  such  ground  and  in  such  manner  as  he  might 
have  done  before  the  passing  of  the  act. 

"It  will  be  borne  in  mind  that  the  leading  adjudications  above  cited 
were  made,  and  this  act  of  parliament  was  passed,  after  the  separation 
of  the  United  States  from  Great  Britain,  so  that  they  have  no  authority 


750  JUDGE  AND  JURY.  No.  633. 

here  as  positive  law ;  and  they  are  referred  to  only  as  historical  evi- 
dence, showing  what  the  ancient  common  law  of  England  was  when  it 
became  the  common  law  of  Massachusetts  and  the  other  colonies  of 
English  origin.  It  appears  to  me  that  the  manner  in  which  this  contro- 
versy was  conducted^  and  the  ancient  authorities  which  it  brought  to 
light,  have  a  significant  and  direct  application  in  support  of  the  proposi- 
tion I  am  endeavoring  to  maintain.  Both  parties  acted  on  the  assumption 
that,  by  the  common  law,  the  juries  answer  to  questions  of  fact,  and 
judges  to  those  of  law,  and  when  all  the  facts  appears  on  the  record, 
it  is  for  the  Court  only  to  decide  and  pronounce  the  law. 

"Whether,  therefore,  we  consider  the  rules  of  the  common  law,  or  the 
constitution  and  law  of  this  Commonwealth,  we  are  of  opinion  that  it  is 
the  proper  province  and  duty  of  the  Court  to  expound  and  declare  the 
law,  and  that  it  is  the  proper  province  and  duty  of  the  jury  to  inquire 
into  the  facts  by  such  competent  evidence  as  may  be  laid  before  them, 
according  to  the  rules  of  law  for  the  investigation  of  truth,  which  may 
be  declared  to  them  by  the  Court,  and  find,  and  ultimately  decide,  on 
the  facts.  It  may  be  added  that  it  is  the  more  necessary  to  adhere  to 
this  rule,  in  the  administration  of  American  law,  because  in  these 
States  the  government  is  conducted  according  to  written  constitutions,, 
in  which  the  powers  even  of  the  Legislature  are  limited  and  defined: 
and  it  is  therefore  within  the  province,  and  it  is  made  the  duty  of  the 
judicial  department,  on  proper  occasions,  to  decide,  not  only  what  is 
the  true  interpretation  and  legal  effect  of  a  legislative  enactment,  but 
also  whether  an  act,  passed  with  all  the  forms  of  legislation,  is  within 
the  just  limits  of  legislative  power,  and  therefore  whether  it  is  consti- 
tutional and  valid. "^ 

I — Compare  the  authorities  cited  in  W.,  §   2SS7« 


No.  634.  JUDICIAL   NOTICE.  751 


BOOK   IV. 

OF  WHAT  PROPOSITIONS  NO  EVIDENCE 
NEED  BE  PRESENTED. 


TITLE   I. 
JUDICIAL   NOTICE. 

Year-Book,  7  H.  IV,  41,  pi.  5  (1406)  :  In  arguing  a  question  as 
to  the  duty  of  the  Court  not  to  have  rendered  a  certain  judgment, 
counsel  put  this  case:  "Sir,  let  us  put  the  case  that  one  man 
^"*  kills  another  in  your  presence,  you  observing  it,  and  another 
who  is  not  guilty  is  indicted  before  you  and  is  found  guilty  so  as  to 
incur  the  penalty  of  death;  you  ought  to  respite  the  judgment  against 
him,  for  you  are  know^ing  to  the  contrary,  and  should  make  further 
report  to  the  King,  to  give  him  pardon.  No  more  should  you  give 
judgment  in  this  case,  before  causing  those  to  appear  by  whose  hands 
the  King  was  paid."  Gascoigne,  C.  J. :  "Once  the  King  himself  asl<ed 
of  me  the  very  case  that  you  have  put,  and  asked  me  what  was  the 
law,  and  I  told  him  just  as  you  say  it,  and  he  was  well  pleased  that  the 
law  was  so." 

In  Sir  John  Fenwick's  Trial,  before  the  House  of  Commons,  13 
How.  St.  Tr.  663,  667  (1696),  Mr.  Hawles,  Solicitor-General,  on  Mr. 
Newport  having  cited  the  above  story  of  Gascoigne,  replied :  "It  is 
said,  though  a  judge  do  think  in  his  conscience  a  person  guilty,  yet  he 
ought  not  to  make  use  of  that  private  knowledge ;  and  a  case  was 
quoted  out  of  Henry  IV.  But  I  think  that  judge  might  have  behaved 
himself  something  better  than  he  did;  and  sure  I  am,  now  he  would 
be  blamed.  I  do  not  say  that  a  judge  upon  his  private  knowledge  ought 
to  judge;  he  ought  not.  But  if  a  judge  knows  anything  whereby  the 
prisoner  might  be  convicted  or  acquitted  (not  generally  known),  then 
I  do  say  he  ought  to  be  called  from  the  place  where  he  sate,  and  go 
to  the  bar  and  give  evidence  of  his  knowledge;  and  so  the  judge  in 
Henry  IV's  time  ought  to  have  done,  and  not  to  have  suffered  the 
prisoner  to  have  been  convicted  and  then  get  a  pardon  for  him;  for  a 
pardon  will  not  always  do  the  business." 


752  JUDICIAL   NOTICE.  No.  635. 


FOX  V.  STATE    (1851). 
9  Ga.  373. 

At  the  July  Term,  1850,  of  Bibb  Superior  Court,  John  Fox  was 
placed  on  his  trial  for  larceny  from  the  house.  The  defendant  moved 
for  a  continuance  for  the  absence  of  a  witness,  William  Robards, 
"^"  who  resided  in  Decatur  County.  On  the  showing  for  a  continu- 
ance, it  appeared  that  the  witness  had  been  recognized  at  the  last  term 
of  the  Court  to  appear  and  testify  in  the  cause  for  the  defendant.  The 
defendant  stated  that  he  expected  to  prove  by  the  witness,  Robards, 
that  he  (witness)  heard  one  Simpson,  upon  whose  testimony  the  de- 
fendant understood  the  State  would  mainly  rely  for  conviction,  say 
"that  if  hard  swearing  would  send  the  defendant  to  the  penitentiary, 
that  he  should  go."  .  .  .  Robards  was  confined  in  jail  at  the  time  of 
the  conversation,  charged  with  stealing  a  horse  and  buggy.  .  .  .  The 
motion  to  continue  was  overruled  by  the  Court,  and  the  trial  ordered 
to  progress.  The  Jury  returned  a  verdict  of  guilty.  Whereupon, 
counsel  for  defendant  moved  the  Court  for  a  new  trial,  on  the  ground 
that  the  Court  erred  in  refusing  to  grant  the  continuance.  The  Court 
overruled  the  motion  for  a  new  trial,  and  remarked  "that  in  overruling 
the  defendant's  showing  for  a  continuance,  he  did  not  place  much  con- 
fidence in  the  truth  of  the  defendant's  statements — knowing,  as  he  had, 
for  many  years,  the  witness,  Simpson,  whose  testimony  was  sought  to 
be  assailed,  and  having  no  special  reason  to  confide  in  the  integrity 
of  Fox,  he  thought  if  a  witness  intended  to  act  out  the  corruption 
ascribed  to  Simpson,  he  would  not  be  likely  to  declare  his  intentions 
in  advance  in  the  presence  of  others,  and  the  facts  disclosed  on  the 
trial  left  his  preconceived  opinions  of  the  integrity  of  Fo^..  unchanged." 
Counsel  for  the  defendant  excepted. 

NiSBET,  J. :  "The  new  trial  ought  to  have  been  grafted,  because 
there  was  error  in  not  allowing  the  continuance.  .  .  .  All  proper  dili- 
gence was  used  to  have  the  witness  at  the  trial.  It  is  clear  that  the 
showing  for  a  continuance  was  complete. 

"Why,  then,  was  it  not  granted?  It  appears  from  the  record  before 
me,  that  the  presiding  Judge  gave  as  reasons  for  refusing  the  new 
trial,  that  he  did  not  place  much  confidence  in  the  truth  of  the  defend- 
ant's statements.  .  .  .  They  are  not  only  not  sufficient,  but  develop  a 
ground  of  action  in  such  cases  not  warranted  by  the  law.  .  .  .  There 
was,  as  we  have  seen,  no  legal  objection  to  the  showing  for  a  con- 
tinuance. Can  the  Court,  when  the  showing  is  sufficient,  refuse  it 
on  account  of  his  personal  knowledge  of  the  character  of  the  party 
making  it,  and  of  the  witness  whose  testimony  that  party  is  seeking 
to  assail — a  knowledge  not  drawn  from  evidence  before  the  Court,  but 
from  his  private  sources  of  information?  He,  beyond  all  controversy, 
cannot.  He  has  no  discretion  to  act  upon  such  knowledge.  The  dis- 
cretion allowed  in   applications   for   a  continuance  must  be   within   the 


I 


No.  636.  JUDICIAL   NOTICE.  753 

law,  and  must  spring  out  of,  and  be  bounded  by  what  transpires  in 
the  case.  It  cannot  be  justified  upon  what  the  Court,  as  a  man,  may  or 
may  not  know.  Justice  is  administered  according  to  general  rules ; 
rules  which,  if  applicable  in  a  single  case,  must  be  applicable  in  all 
like  cases,  no  matter  who  are  the  parties,  or  what  their  character.  If 
the  Court  may  dispense  with  them  because  of  his  personal  knowledge 
of  the  character  of  the  parties  before  him  in  one  case,  he  may  in  all 
cases.  And  this  would  be  equivalent  to  dispensing  with  them  alto- 
gether."^ 


ATTORNEY-GENERAL  v.  CAST-PLATE  GLASS  CO.    (1792). 

/  Anstr.  jp. 

On  this  information  a  verdict  was  found  against  the  defendants, 
who  now  moved  to  set  it  aside,  and  obtain  a  new  trial,  on  the  ground 
of  misdirection  of  the  Judge.  The  case  turned  upon  the  inter- 
pretation  of  the  statute  27  Geo.  III.  c.  28,  whereby  it  is  enacted: 
.  .  .  Section  10.  "And  be  it  further  enacted  by  the  authority  aforesaid, 
that  all  and  every  maker  or  makers  of  cast-plate  glass,  shall  break  into 
small  pieces,  to  the  satisfaction  of  the  officer  of  excise  under  whose 
survey  such  maker  or  makers  shall  be,  immediately  upon  being  re- 
quested so  to  do  by  such  officer,  all  cast-plate  and  all  cullett  which 
shall  not  be  squared  into  plates."  .  .  .  The  five  plaies  in  question  were 
made  by  the  defendants,  with  oval  tops,  and  as  this  was  the  shape  in 
which  they  were  intended  for  sale,  they  refused  to  square  them,  as 
the  officer  desired,  by  making  them  rectangular ;  and  accordingly  this 
information  was  filed  against  them,  for  the  penalties  in  the  tenth 
section.  The  Attorney  General,  at  the  trial,  produced  books  explain- 
ing the  process  and  terms  of  art  in  the  manufacture ;  and  the  defend- 
ants offered  evidence  to  prove,  that  the  technical  meaning  of  the  word 
squaring  glass,  is  the  cutting  it  into  the  shape  in  which  it  is  intended 
for  the  market,  whatever  that  shape  may  be ;  and  on  this  evidence 
being  refused,  and  a  verdict  directed  and  found  against  the  defendants, 
the  present  motion  was  made  for  a  new  trial.  .  .  . 

Eyre,  C.  B.  :  "In  explaining  an  Act  of  Parliament,  it  is  impossible 
to  contend,  that  evidence  should  be  admitted ;  for  that  would  be  to 
make  it  a  question  of  fact,  in  place  of  a  question  of  law.  The  Judge 
is  to  direct  the  jury  as  to  the  point  of  law,  and  in  doing  so,  must  form 
his  judgment  of  the  meaning  of  the  legislature  in  the  same  manner 
as  if  it  had  come  before  him  by  demurrer,  where  no  evidence  could 
be  admitted.  Yet  on  demurrer  a  Judge  may  well  inform  himself  from 
dictionaries  or  books  on  the  particular  subject  concerning  the  mean- 
ing of  any  word.  If  he  does  so  at  Nisi  Prius,  and  shews  them  to  the 
jury,  they  are  not  to  be  considered  as  evidence,  but  only  as  the  grounds 

X^-Compare  the  authorities  cited   in  W.,  §   2569. 


754  JUDICIAL   NOTICE.  No.  636. 

on  which  the  Judge  has  formed  his  opinion,  as  if  he  were  to  cite  any 
authorities  for  the  point  of  law  he  lays  down. 

"I  have  no  doubt  in  saying,  that  the  legislature  used  the  word 
'square,'  not  in  the  strict,  but  in  the  common  acceptation,  confining 
it  to  rectangular,  but  not  to  equilateral  figures." 


REX  V.  ROSSER    (1836). 
7  C.&  P.  648. 

The  prisoner  was  indicted  for  stealing  in  the  dwelling  of  Charles 
May  a  watch  and  seals,  stated  in  the  indictment  to  be  of  the  value  of 
7/.  A  witness  for  the  prosecution  having  sworn  that  the  prop- 
"**  erty,  in  his  opinion,  was  worth  that  sum,  the  jury,  after  the 
summing  up,  inquired  if  they  were  at  liberty  to  put  a  value  on  the 
property  themselves. 

Vaughan,  J.:  "If  you  see  any  reason  to  doubt  the  evidence  on 
the  subject,  you  are  at  liberty  to  do  so.  Any  knowledge  you  may  have 
on  the  subject  you  may  use.    Some  of  you  may  perhaps  be  in  the  trade." 

Parke,  B.  :  "If  a  gentleman  is  in  the  trade,  he  must  be  sworn  as 
a  witness.  That  general  knowledge  which  any  man  can  bring  to  the 
subject  may  be  used  without;  but  if  it  depends  on  any  knowledge  of  the 
trade,  the  gentleman  must  be  sworn."^ 


DOYLE  V.  BRADFORD    (1878). 
po  III.  416. 

Scott,  J.:  "This  action  was  brought  to  recover  of  defendant  a 
penalty  imposed  for  the  violation  of  a  village  ordinance  regulating 
the  sale  of  intoxicating  liquors.  On  the  trial,  both  before  the  jus- 
"*^  tice  of  the  peace  and  in  the  circuit  court,  defendant  was  found 
guilty,  and  judgment  rendered  against  him  for  $50,  and  to  reverse  the 
judgment  of  the  latter  Court  he  brings  the  case  to  this  court  on  appeal. 
Unless  the  village  is  organized  under  the  general  incorporation  act  of 
1872,  it  is  conceded  it  had  no  authority  to  pass  the  ordinance  that  im- 
posed the  penalty  sought  to  be  recovered,  and  as  the  record  contains 
no  express  averment  to  that  effect,  it  is  said  this  Court  can  not  take 
judicial  notice  of  its  organization  under  the  general  law. 

"The  statute  makes  it  the  duty  of  all  Courts  in  this  State  to  take 

2 — Compare  the  authorities  cited  in  W.,  dent    commonly    does    not    happen,    unless 

§   2570;   and  the  following  phrasing:   Man-  the    stick    is    carelessly    handled;     that    it 

ning   V.   R.   Co.,    i66   Mass.    230,   44   N.   E.  is  in  the  power   of  the  holder  to  see  that 

13s    (1896):   Injury  by  the   fall   of  a  trol-  he    does    not    submit    it    to    such    a   strain 

ley;    to    the    objection    that    there    was    no  as   to    make    it    possible  .that   it    should    be 

evidence    of    negligence,    it    was   said    "the  torn    from    his   hands, — and    to   infer    from 

jury    were    at    liberty    to    say,    from    their  those    general    propositions    of    experience 

experience     as     men     of    the     world,     that  that   there    was    negligence   in   the   particu- 

under    such    circumstances    such    an    acci-  lar   case." 


No.  638.  JUDICIAL    NOTICE.  755 

judicial  notice  of  the  existence  of  villages  and  cities  organized  under 
the  general  law,  and  of  the  change  of  the  organization  of  any  town  or 
city  from  its  original  organization  to  its  organization  under  that  act. 
In  Brush  v.  Lemma,  jj  111.  496,  it  was  declared  that  before  this  Court 
could  take  judicial  notice  of  the  change  of  any  city  or  town  from  its 
original  organization  to  its  organization  under  the  general  law,  it  must 
in  some  way  appear  in  the  record  that  the  city  or  its  authorities  are 
acting  under  such  new  organization,  and  when  that  fact  is  once  made 
to  appear,  the  Court,  without  proof  that  all  the  requirements  of  the 
statute  have  been  complied  with,  will  take  judicial  notice  of  its  organ- 
ization under  this  statute.  It  is  apprehended  it  can  make  no  difference 
how  that  fact  is  made  to  appear.  All  matters  generally  known  will  be 
deemed  to  be  within  the  knowledge  of  Courts, — such  as  the  names 
of  counties  in  the  State,  and  whether  they  are  acting  under  township 
organization  or  not.  In  the  case  cited  there  was  a  special,  public  law, 
of  which  the  Court  was  bound  to  take  judicial  notice,  under  whicii 
the  city  was  originally  organized.  The  single  fact,  an  election  had 
been  held  and  two  persons  were  contesting  the  right  to  the  office  of 
mayor,  was  not  regarded  as  such  action  as  would  indicate  the  inhabi- 
tants were  acting  under  the  general  incorporation  law.  Such  an  elec- 
tion for  such  an  office  could,  with  equal  propriety,  have  been  held 
under  the  special  law  under  which  the  city  may  have  been  acting,  and 
hence  that  circumstance  alone  was  not  thought  to  be  sufficient  to  'excite 
inquiry'  or  to  'arouse  judicial  notice,  the  city,  as  a  matter  of  fact,  had 
changed  its  organization  from  under  the  special  to  the  general  law.' 

"But  that  is  not  the  case  here.  There  was  a  special  law  under 
which  the  'town  of  Bedford'  could  be  and  no  doubt  was  organized,  but 
there  was  no  law  other  than  the  act  of  1872  under  which  it  could  be 
organized  as  a  village.  It  could  only  be  a  village  under  the  general 
incorporation  act.  Evidence  is  found  in  the  record  it  has  assumed  to 
act  as  a  village  incorporation  in  the  passage  of  ordinances  and  the 
bringing  of  suits  in  its  corporate  name,  and  it  appears  the  offense  of 
which  defendant  was  convicted  was  committed  within  the  corporate 
limits  of  the  'village  of  Bradford.'  This  is  certainly  evidence  of  the 
existence  of  the  village  of  Bradford,  and  as  it  is  known  there  is  no  such 
village  under  any  special  law  of  the  State,  it  must  be  under  the  general 
law;  and,  as  was  said  in  Brush  v.  Lemma,  without  proof  that  all  the 
requirements  of  the  statute  have  been  complied  with,  judicial  notice 
will  be  taken  of  the  change  of  its  organization  under  the  general  law."' 

3 — Baron    Parke,    in    Frost's    Trial,    Gur-  Parliament,    you    had    the    .\ct    here;    for, 

ney's    Rep.    168    (1840),    to   counsel:    "For  though     we     are     supposed     to     keep     the 

the    future,    it    would    save    time    if,    when  statutes  in  our   heads,  we  do  not." 
you   founded  an   objection  upon  an  Act  of 


756  JUDICIAL    NOTICE.  No.  G39. 


HOOPER  V.  MOORE    (1857). 
5  Jones  Law  ijo. 

The  plaintiff  declared  for  the  detention  of  the  slaves  Fanny  and 
her  children,  and  alleged  title,  as  administrator  with  the  will  annexed 
of  Alexander  MoorCj  under  the  provisions  of  that  will.  The 
"^"  testator  lived  and  died  in  Halifax  county,  in  the  State  of  Vir- 
ginia. .  .  .  The  defendant  claimed  the  slaves  as  the  administrator  of 
Alexander  Moore,  Jun'r.,  and  offered  evidence  to  show  that  .  .  .  the 
said  testator  placed  in  the  possession  of  his  grand-daughter  and  her 
husband,  Alexander  Moore,  Jun'r.,  the  slave  Fanny  in  question,  who 
is  the  mother  of  the  other  slaves  sued  for;  that  Alexander  Moore, 
Jun'r.,  held  the  slaves  in  question  for  ten  years,  during  which  time, 
he  lived  in  the  State  of  Virginia,  and  brought  them  thence  to  the  county 
of  Caswell,  where  he  remained  in  possession  of  them  until  his  death 
in  1852.  In  order  to  show  the  law  of  Virginia  controlling  this  trans- 
action, the  deposition  of  Woodson  Hughes,  Esquire,  a  gentleman  of 
the  legal  profession  in  that  State,  was  produced,  who  deposed  that  ac- 
cording to  the  law  of  Virginia,  no  inference  of  a  gift  could  be  drawn 
from  the  possession  of  the  slaves,  under  the  circumstances  of  this  case. 
The  defendant's  counsel  insisted:  .  .  .  That  no  statute  of  Virginia 
had  been  offered  in  evidence,  altering  the  common  law;  that  by  the 
common  law  a  gift  was  presumed,  and  that  it  was  the  duty  of  the 
Court  to  expound  the  statute  and  give  the  defendant  the  benefit  of  the 
presumption,  notwithstanding  the  deposition  of  Mr.  Hughes,  and  prayed 
the  Court  so  to  instruct  the  jury.  The  Court  .  .  .  declined  giving  the 
instructions  prayed  for,  but  gave  in  charge  the  law  of  Virginia  as 
proved  by  the  deposition  of  Mr.  Hughes,  and  left  it  to  the  jury  to 
decide  the  question,  whether  it  was  a  gift  or  a  loan,  free  from  any 
presumption   either  way.     Defendant  again   excepted.  .  .  . 

Pearson,  J.:  "What  is  the  law  of  another  State,  or  of  a  foreign 
country,  is  as  much  a  'question  of  law,'  as  what  is  the  law  of  our 
own  State.  There  is  this  difference,  however:  the  Court  is  presumed 
to  know  judicially  the  public  laws  of  our  State,  while  in  respect  to 
private  laws,  and  the  laws  of  other  States  and  foreign  countries,  this 
knowledge  is  not  presumed;  it  follows  that  the  existence  of  the  latter 
must  be  alleged  and  proved  as  facts;  for  otherwise,  the  Court  cannot 
know  or  take  notice  of  them.  This  is  familiar  learning.  In  order  to 
give  effect  to  this  presumption  of  a  knowledge,  on  the  part  of  the  Court, 
of  the  public  laws  of  our  State,  it  is  provided  that  the  persons  who  are 
entrusted  with  the  administration  of  justice  as  a  Court,  shall  be  men 
learned  in  the  law.  .  .  .  When  an  issue  of  fact  involves  a  question  of 
law,  the  jury  are  not  entrusted  to  decide  it;  but  it  is  the  duty  of  the 
Court  to  give  to  the  jury  instruction  in  regard  to  the  law,  and  it  is 
the  duty  of  the  jury  to  be  governed  by  such  instructions.  In  this  way, 
as  much  accuracy,  and   as  great  a  degree  of  fixedness,   in  respect  to 


No.  639.  JUDICIAL    NOTICE.  757 

questions  of  law,  is  secured,  as  the  nature  of  the   subject  admits  of. 

"Such  being  the  case  in  respect  to  questions  arising  about  our 
own  laws,  it  would  seem  as  a  matter  of  course  to  be  likewise  so  in 
respect  to  questions  arising  about  the  laws  of  other  States,  or  of  for- 
eign countries,  whenever,  in  the  administration  of  justice,  our  Courts 
are  called  upon  to  deal  with  them.  The  assertions  of  a  contrary- 
opinion  is  met  at  once  by  these  considerations,  which,  as  it  seems 
to  us,  cannot  be  answered:  i.  e.,  if  juries  are  incompetent  to  decide 
questions  in  regard  to  our  own  laws,  and  the  Court  is  required  to  give 
them  instructions  in  respect  thereto,  are  they  any  more  competent  to 
decide  questions  in  regard  to  the  laws  of  other  States,  or  foreign  coun- 
tries ?  and  do  not  they  stand  equally  in  need  of  instructions  in  respect 
to  them?  If  such  questions  are  to  be  decided  by  the  juries,  their  deci- 
sions cannot  be  reviewed  by  the  Supreme  Court,  and  where  is  the  se- 
curity either  for  accuracy  or  fixedness?  A  jury  is  not  a  permanent 
tribunal,  and  no  memorial  is  kept  of  its  action,  except  the  general  con- 
clusion— a  verdict;  which  is  binding  only  between  the  parties  to  the 
particular  case. 

"But  it  is  said  our  Courts  are  not  presumed  to  know  the  laws  of 
other  States,  or  of  foreign  countries.  Admit  it;  still  can  it  be  ques- 
tioned that  the  Court  is  more  competent  to  ascertain  and  understand 
such  laws,  than  the  jury?  or  that  the  jury  stand  as  much  in  need  of 
instruction  in  respect  thereto,  as  in  respect  to  our  own  laws? 

"Again,  it  is  said  the  existence  of  such  laws  must  be  alleged  and 
proved  as  facts.  Admit  it.  But  how  are  they  to  be  proved?  To  the 
court,  or  to  the  jury?  Surely  to  the  court,  because  they  are  'questions 
of  law.'  We  are  aware  that  an  impression  prevails  to  some  extent, 
that  the  proof  is  to  be  made  to  the  jury.  This  originated  from  the 
expression  'to  be  proved  as  facts,'  and  many  loose  dicta  are  to  be  met 
with,  scattered  through  the  books,  in  which  these  words  have  been 
inadvertently  added  to,  so  as  to  make  the  expression  'to  be  proven 
as  facts  to  the  jury.'  ...  If  the  law  be  written,  and  its  existence  is 
properly  authenticated,  the  Court,  availing  itself  of  the  aid  of  the  judi- 
cial decisions  of  the  country,  puts  a  construction  on  it,  and  explains 
its  meaning  and  legal  effect,  and  the  jury  have  nothing  to  do  with  it, 
save  to  follow  the  instructions  of  the  Court,  as  if  it  was  our  own 
law.  If  the  law  is  unwritten,  and  its  existence  is  presumed  or  admit- 
ted, then  the  jury  have  nothing  to  do  with  it.  For  example,  if  it  be 
presumed,  or  admitted,  that  the  common  law  prevails  in  the  State 
of  Virginia,  and  has  not  been  altered  by  statute  in  respect  to  the 
particular  question,  our   Court  decides  what  the  common  law  is.  .  .  . 

"But  if  the  existence  of  an  unwritten  law  of  another  State,  or  for- 
eign country,  is  not  presumed  or  admitted,  then  its  existence  must  be 
proved  by  competent  witnesses,  and  the  jury  must  then  pass  on  the 
credibility  of  the  witnesses,  and  it  is  the  province  of  the  Court  to 
inform  the  jury  as  to  the  construction,  meaning,  and  legal  effect  of 
the  law,  supposing  its  existence  to  be  proven ;  and  to  this  end,  the  Court 


758  JUDICIAL    NOTICE.  No.  639. 

should  avail  itself  of   the  judicial  decisions  of  the   State  or  country. 

"In  our  case,  the  Judge  below  erred  in  refusing  to  decide  that, 
according  to  the  common  law,  a  gift  was  presumed,  as  is  settled  by 
repeated  decisions,  and  in  leaving  it  an  open  question  of  fact  for  the 
jury  upon  the  deposition  of  Mr.  Hughes."* 


McCOY  V.  THE  WORLD'S  COLUMBIAN  EXPOSITION    (1900). 
186  III.  356,  3/  N.  E.  1043. 

Cartwright,  J. :  "Appellant  subscribed  for  one  thousand  shares 
of  the  capital  stock  of  appellee.  The  shares  were  $10  each^  and  at 
the  time  of  subscription  two  per  cent,  or  $200,  was  paid  to  meet 
*  preliminary  expenses.  Afterward,  three  calls,  of  eighteen, 
twenty  and  twenty  per  cent,  respectively,  of  the  capital  stock  were 
made,  which  appellant  refused  to  pay.  Appellee  brought  this  suit  to 
recover  the  amount  of  said  calls,  and  at  the  trial  the  Court  directed  a 
verdict  for  $7,500,  being  the  amount  of  the  calls,  with  five  per  cent 
interest  from  the  time  when  they  became  due.  A  verdict  was  returned 
accordingly  and  judgment  was  entered  thereon.  .  .  . 

"The  subscription  contained  the  condition  that  the  exposition  should 
be  located  in  Chicago,  and  it  is  said  that  there  was  no  proof  of  the 
performance  of  that  condition.  The  Constitution  of  the  State  was 
amended  to  authorize  the  corporate  authorities  of  the  city  of  Chicago 
to  issue  bonds  in  the  aid  of  the  exposition  to  be  held  in  the  city  of 
Chicago,  and  the  fact  that  it  was  located  and  held  there  appears  from 
public  Acts  of  Congress.  From  numerous  such  acts  it  became  a 
historical  fact  of  such  public  notoriety  that  the  Courts  will  take  judicial 
notice  of  it."® 


KILPATRICK  V.  COMMONWEALTH    (1858). 
31  Pa.  ip8. 

Strong,  J. :  "This  record  presents  several  questions  of  the  gravest 
importance.  .  .  .  The  principal  questions  relate  to  the  constitution  of 
the  court  in  which  the  indictment  was  tried,  and  to  the  instruc- 
^^^  tion  which  was  given  the  jury.  .  .  .  The  record  exhibits  that, 
at  the  court  of  Oyer  and  Terminer  for  the  city  and  county  of  Phila- 
delphia, John  Kilpatrick,  the  defendant,  was  indicted,  tried,  convicted 
of  murder  in  the  first  degree,  and  sentenced.  The  first  assignment  of 
error  is  that  'it  appears  by  the  record  that  the  case  was  tried  by  the 
Hon.  James  R.  Ludlow  and  Joseph  Allison,  neither  of  whom  was  the 
President  of  the  Court  of  Common  Pleas;  and  therefor  the  said  judges 

4 — Compare  the  authorities  cited  in  W.,  5 — Compare  the  authorities  cited  in  W., 

§§    2572,    2573.  §    2575. 


No.  641.  JUDICIAL    NOTICE.  759 

had  no  constitutional  right  to  hold  said  court  and  try  the  said  case; 
and  that  the  entire  proceedings  are  void  and  coram  non  judice' 

"Upon  the  argument  in  this  court  a  doubt  was  suggested,  whether 
this  question  is  raised  by  the  record.  The  doubt  was  not  without 
reason.  Personally  we  know  that  Judges  Ludlow  and  Allison  are 
asociate  justices  of  the  Court  of  Common  Pleas,  learned  in  the  law, 
and  that  neither  of  them  is  the  president  of  that  court.  Yet  can  we 
judicially  take  notice  of  the  fact,  that  neither  of  them  is  the  president 
of  that  court,  when  the  defendant  did  not  deny  it  by  plea,  and  when 
the  record  does  not  show  it;  but,  on  the  contrary,  avers  that  the  trial 
took  place  at  a  court  of  Oyer  and  Terminer?  Doubtless,  there  are 
many  things  of  public  interest,  things  which  ought  generally  to  be 
known,  of  which  courts  will  take  notice  without  proof.  But  whether 
a  Superior  Court  is  bound  to  know  who  are  the  judges  of  subordinate 
courts,  and  what  is  the  nature  of  their  commissions,  is  by  no  means 
clearly  settled.  In  the  English  courts  it  has  been  held,  that  such  facts 
a  Court  cannot  be  presumed  to  know.  ...  In  the  American  courts  the 
question  is  still  an  open  one,  though  it  has  not  often  arisen.  .  .  .  Not- 
withstanding the  doubts,  however,  which  have  elsewhere  entertained  in 
similar  cases,  we  are  disposed  to  take  judicial  notice  of  the  facts  that, 
at  the  time  of  the  trial  in  the  court  below.  Judge  Thompson  was  Presi- 
dent Judge  of  the  Court  of  Common  Pleas  of  Philadelphia  county,  and 
that  Judges  Ludlow  and  Allison,  though  justices  learned  in  the  law, 
were  orrly  associates.  The  rule  is,  that  Courts  will  take  notice  of  what 
ought  to  be  generally  known  within  the  limits  of  their  jurisdiction. 
Tliere  seems  to  us,  to  be  as  much  reason  for  our  having  knowledge  of 
who  are  in  fact  the  judges  of  our  constitutional  courts,  as  for  our  hav- 
ing judicial  knowledge  of  the  heads  of  departments,  sheriffs,  &c. ;  knowl- 
edge of  whom  is  always  presumed."* 

6 — Compare  the  authorities  cited  in  W.,   §  2578. 


760  JUDICIAL  ADMISSIONS.  No.  642. 


TITLE  II. 

JUDICIAL  ADMISSIONS/ 

LANGLEY  v.  EARL  OF  OXFORD  (1836). 

I  M.  &  W.  508. 

Debt  on  bond,  in  the  penalty  of  1300/.  The  defendant  craved  oyer 
of  the  bond  and  also  of  the  condition,  which  being  set  out,  stated  it  to 
be  for  payment  of  the  sum  of  650/.,  with  interest  for  the  same, 
"*"  after  the  rate  of  5/.  for  each  hundred  pounds  by  the  year.  The 
defendant  then  pleaded  that  the  words  respecting  the  interest  had  been 
inserted  in  the  condition  of  the  bond  after  it  had  been  executed.  To 
which  the  plaintiff  replied,  taking  issue  thereon.  At  the  trial  before 
Lord  Abinger,  C.  B.,  at  the  Middlesex  Sittings,  the  plaintiff  produced 
the  bond,  the  execution  of  which  was  attested  by  a  subscribing  wit- 
ness ;  but  he  was  not  called.  Evidence,  however,  was  given  of  a  search 
for  him,  but  without  success,  which  the  learned  Judge  held  to  be  suf- 
ficient to  excuse  his  not  being  produced.  The  handwriting  of  the  at- 
testing witness  was  not  proved,  but  the  plaintiff  put  in  an  order  of  Mr. 
Baron  Gurney,  dated  the  loth  of  February,  1835,  by  which  it  was 
ordered,  with  the  consent  of  both  parties,   that  the  venue  should  be 

I — Compare    the    following    passages:  tions    not    unreasonable,    not    against    good 

Gilbert,     Evidence,     103     (1726):       "The  morals   or   sound   public   policy,    have   been 

consent    of   the    parties   concerned    must    be  and    will    be    enforced;    and    generally,    all 

sufficient    and    concluding    evidence    of    the  stipulations    made    by    parties    for    the    gov- 

truth    of    such    fact,    for    they    [the    jury]  ernment    of    their    conduct    or    the    control 

are    only    to    try    the    truth    of   such    facts  of    their    rights,    in    the    trial    of    a    cause 

wherein    the    parties    differ."  or    the    conduct    of    a    litigation,    are    en- 

Com.  V.  Desmond,  5  Gray  80,  82  (1855);  forced    by    the    Courts.  ...   So    it    is    not 

Thomas,    J.,    referring    to    the    prosecuting  true    that   parties   cannot   enter    into   stipu- 

attorney's    admission    trial    that    a    witness  lations  which  in  some  sense  will  bind  and 

was   an   accomplice;    "Admissions   made   in  control   the   action   of   the   Courts." 

the  course  of  judicial  proceedings  are  sub-  Dunning  v.  M.  C.  R.  Co.,  91  Me.  81,  39 

stitutes   for,   and   dispense  with,   the  actual  Atl.   352    (1897);  Savage,  J.:   "It  does  not 

proof    of    facts."  lie   in   the   power   of  one   party  to   prevent 

Paige  V.  Willet,  38  N.  Y.  28,  31  the  introduction  of  relevant  evidence  by 
(1868):  "A  party  who  formally  and  ex-  admitting  in  general  terms  the  fact  which 
plicitly  admits  by  his  pleading  that  which  such  evidence  tends  to  prove,  if  the  pre- 
establishes  the  plaintiff's  right  will  not  be  siding  justice,  in  his  discretion,  deems  it 
suffered  to  deny  its  existence  or  to  prove  proper  to  receive  it.  Parties,  as  a  general 
any  state  of  facts  inconsistent  with  that  rule,  are  entitled  to  prove  the  essential 
admission."  facts, — to    present    to    the    jury    a    picture 

New   York,  L.  &    W.   R.   Co.'s  Petition,  of   the   events    relied  upon.      To   substitute 

98   N.    Y.   447,   453    (1885);    stipulation   as  for   such     a     picture     a     naked     admission 

to    commissioners    of    valuation;    Earl,    J.:  might    have   the   effect   to   rob   the   evidence 

"Parties      by     their      stipulations  .   .   .  may  of  much  of  its  fair  and  legitimate  weight." 

stipulate    away    statutory,    and    even    con-  Compare  the  authorities  cited   in  W.,  §S 

stitutional    rights;  ...  all      such      stipula-  2588,    2589. 


No.  643.  JUDICIAL  ADMISSIONS.  761 

changed  from  Carmarthenshire  to  Middlesex,  the  defendant  thereby- 
undertaking  to  admit  on  the  trial  of  the  cause,  in  case  the  subscribing 
witness  should  not  be  found,  that  the  attestation  was  in  his  handwrit- 
ing. The  cause  had  been  before  tried  in  Middlesex  after  the  above 
order  was  made,  the  only  issue  then  being  on  the  plea  of  non  est  fac- 
tum; the  words  in  the  condition  of  the  bond  respecting  the  payment 
of  interest,  not  having  been  set  out  on  oyer.  The  plaintiff  on  that  trial 
recovered  a  verdict,  which  the  Court  set  aside,  and  ordered  a  new  trial 
on  payment  of  costs,  giving  the  defendant  leave  to  set  out  on  oyer  the 
words  respecting  the  interest;  and  the  defendant  accordingly  did  so, 
and  pleaded  the  special  plea  now  on  the  record.  The  defendant  con- 
tended on  the  second  trial,  that  the  order  of  Mr.  Baron  Gurney  did 
not  apply  to  this  trial,  and  that  it  was  therefore  incumbent  on  the  plain- 
tiff to  prove  the  handwriting  of  the  attesting  witness.  The  Lord  Chief 
Baron,  however,  admitted  the  bond  in  evidence  without  further  proof, 
but  gave  the  defendant  leave  to  move  to  enter  a  nonsuit,  on  the  above 
ground.  ... 

Sir  W.  W.  Follett  now  moved  to  enter  a  nonsuit,  on  the  ground  that 
the  admission  contained  in  the  judge's  order,  made  previously  to  the 
first  trial,  was  not  evidence  on  this  trial,  as  the  pleadings  were  different. 
He  admitted,  that  if  the  pleadings  had  remained  the  same,  the  admis- 
sion might  have  been  evidence  on  the  second  trial.  But  he  contended, 
that  the  oyer  having  been  amended,  and  a  new  plea  pleaded,  it  made 
it  altogether  a  new  record.  .  .  . 

Per  Curiam  :  "...  The  admission  is  to  be  used  on  the  trial  of  the 
cause,  whenever  the  trial  takes  place;  no  matter  whether  it  be  the  first 
or  the  second  trial. "^ 


PRESTWOOD  V.  WATSON  (1896). 
///  Ala.  604,  20  So.  600. 

Ejectment  by  E.  Watson,  as  administrator  of  the  estate  of  R.  E. 
Jordan,  deceased,  against  J.  E.  Prestwood  and  A.  J.  Fletcher,  to  re- 
cover certain  lands,  specifically  described  in  the  complaint. 
D*o  There  was  a  judgment  for  plaintiff,  and  defendants  appeal.  Re- 
versed. .  .  .  On  the  trial  of  the  cause  it  was  admitted  and  agreed  by  and 
between  the  attorneys  for  the  plaintiff  and  the  defendants  that  this  case 
was  tried  in  the  same  court,  at  a  former  term  of  the  court,  upon  an 
agreed  written  statement  of  facts ;  that  said  written  agreed  statement 
of  facts  upon  which  the  case  was  formerly  tried,  and  the  bill  of  ex- 
ceptions upon  which  the  case  was  appealed,  were  lost  or  mislaid.  .  .  . 
The  plaintiff  offered  to  introduce  in  evidence  a  copy  of  the  agreed 
statement  of  facts  used  on  the  former  trial,  which  was  taken  from  the 
report  of  the  case  as  found  in  79  Ala.  417.     It  was  shown  by  the  tes- 

a — Compare  the  authorities  cited  in  W.,    §    2594. 


762  JUDICIAL  ADMISSIONS.  No.  643, 

timony  of  John  Gamble  that  the  foregoing  agreement  was  not  signed 
by  the  parties  or  their  attorneys,  and  was  made  only  for  that  trial, 
and  that  several  years  ago  (four  or  five  years)  the  counsel  of  de- 
fendants notified  plaintiff  and  his  counsel  that  defendants  would  not 
abide  said  agreement  in  any  subsequent  trial.  The  defendants  objected 
to  the  introduction  of  said  statement  of  facts  upon  the  following 
grounds:  (i)  Said  agreed  statement  of  facts  was  never  signed  by  the 
parties,  or  by  their  attorneys.  (2)  Said  agreed  statement  of  facts 
was  not  shown  to  be  made  in  open  court,  or  indorsed  or  entered  on 
the  minutes  or  record  of  the  court.  (3)  Said  agreed  statement  of  facts 
was  not  admissible,  nor  could  the  same  be  alleged  or  suggested  by  the 
plaintiff,  against  the  defendants  in  this  cause,  because  the  same  was  not 
signed  by  the  party  to  be  bound  thereby.  The  Court  overruled  each  of 
the  foregoing  grounds  of  objections,  allowed  said  agreed  statement  of 
facts  to  be  introduced  as  evidence,  and  to  this  ruling  the  defendants  duly 
excepted.  .  .  . 

Brickell,  C.  J.:  "A  former  trial  of  this  case  was  had  in  the  court 
below,  on  a  statement  of  facts  reduced  to  writing,  and  by  the  parties 
admitted  to  be  true,  in  open  court.  .  .  .  The  primary  question  to  be 
considered  is  whether,  on  a  subsequent  trial,  this  statement  of  facts 
was  admissible,  and  its  operation  and  effect  as  evidence;  for,  if  it  was 
admissible,  and  binding  and  conclusive  on  the  parties,  a  consideration 
of  many  of  the  exceptions  reserved  is  unnecessary.  Agreements  of 
this  character,  intelligently  and  deliberately  made, — whether  made  by 
the  parties  in  person,  or  by  their  attorneys  or  solicitors  of  record, — 
are  encouraged  and  favored.  Their  purpose,  generally,  is  to  save  costs, 
and  to  expedite  trials,  by  relieving  from  rules  of  practice  which  in 
the  particular  case  are  deemed  mere  hindrances,  or  the  dispensation 
with  mere  formal  proof,  or,  as  in  the  present  case,  the  admission  of 
uncontroverted  facts,  of  the  existence  of  which  the  parties  are  fully 
cognizant.  .  .  .  Such  agreements  are  sometimes  made  to  avoid  con- 
tinuances, or  for  some  specific  purpose,  and,  by  their  terms,  are  limited 
to  the  particular  occasion  or  purpose,  and,  of  course,  lose  all  force  when 
the  occasion  has  passed,  or  the  purpose  has  been  accomplished.  But 
if  by  their  terms  they  are  not  limited,  and  are  unqualified  admissions 
of  facts,  the  limitation  is  not  implied,  and  they  are  receivable  on  any 
subsequent  trial  between  the  parties.  .  .  .  That  the  agreement  was 
not  signed  by  the  parties  or  by  the  counsel  was  not  of  importance. 
Their  signatures  were  not  necessary  to  impart  to  it  validity.  Private 
agreements  between  parties  or  their  attorneys,  relating  to  the  proceed- 
ings in  a  pending  case, — agreements  not  made  in  the  presence  of  the 
Court, — ^the  rules  of  practice  require,  shall  be  in  writing,  and  signed 
by  the  party  to  be  bound  thereby.  The  rule  has  never  been  supposed 
to  have  any  application  to  agreements  or  admissions  made  in  the 
presence  of  the  Court.  Upon  such  agreements  or  admissions,  made 
verbally,  every  Court  is  necessitated  to  act  daily.    The  refusal  to  recog- 


No.  644.  JUDICIAL  ADMISSIONS.  763 

nize  and  act  upon  them  would  delay  the  transaction  of  business,  and 
entail  upon  counsel  and  parties  much  unnecessary  labor.  The  purpose 
of  the  rule  is  to  relieve  such  admissions  or  agreements  from  the  in- 
firmative  considerations  attaching  to  mere  oral  admissions  of  facts 
imputed  to  the  one  party  or  the  other,  and  to  avoid  the  unseemly 
wrangles,  disputes,  and  contradictions  which  would  ensue  if  they 
rested  only  in  memory.  Where  the  agreement  or  admission  is  made 
in  the  presence  of  the  Court,  it  is  without  the  purpose  or  reason,  if  not 
without  the  letter,  of  the  rule.  And  when  made  in  open  court,  and 
reduced  to  writing,  intended  to  be  used,  and  used,  as  an  instrument  of 
evidence,  and  is  without  limitation  as  to  time  or  occasion,  it  cannot 
be  withdrawn  or  retracted  at  the  mere  will  of  either  party.  The  pres- 
ence of  witnesses  to  prove  the  facts  stated  is  waived.  If  the  witnesses 
had  been  produced  and  testified,  and  they  died,  or  became  insane,  or 
removed  without  the  jurisdiction  of  the  court,  on  a  subsequent  trial 
evidence  of  their  testimony  would  be  admissible.  The  admission  of 
the  facts  dispensing  with  evidence,  if  it  could  be  disregarded  by  either 
party  on  any  subsequent  trial,  in  the  event  of  inability  to  produce  wit- 
nesses to  establish  them,  would  often  convert  such  admissions  into 
instruments  of  fraud  and  injury.  When  they  are  made  deliberately 
and  intelligently,  in  the  presence  of  the  Court,  and  reduced  to  writing, 
they  are  of  the  best  species  of  evidence;  and  parties  cannot  be  per- 
mitted to  retract  them,  as  they  are  not  permitted  at  pleasure  to  retract 
admissions  of  fact  made  in  any  form.  If  they  are  made  improvidently 
and  by  mistake,  and  the  improvidence  and  mistake  be  clearly  shown, 
the  Court  has  a  discretion  to  relieve  from  their  consequences, — a  discre- 
tion which  should  be  exercised   sparingly  and  cautiously. 

"There  was  no  application  by  either  party  for  relief  from  the  agree- 
ment, and  neither  party  should  have  been  bound  to  give  evidence  in 
controversy  of  the  facts  therein  stated.  The  loss  of  the  writing  ren- 
dered admissible  secondary  evidence  of  its  contents.  The  best  evidence 
would  have  been  a  certified  copy  of  the  transcript  in  this  court  on  the 
former  trial.  Unless  by  consent,  the  statement  found  in  the  published 
report  of  the  case  was  not  admissible."^ 


Statutes.  California,  C.  C.  P.  1872,  §  595,  as  amended  by  St. 
1880:  "The  Court  may  require  a  moving  party,  where  application  is 
made  on  account  of  the  absence  of  a  material  witness,  to  state 
upon  affidavit  the  evidence  which  he  expects  to  obtain ;  and  if 
the  adverse  party  thereupon  admits  that  such  evidence  would  be  given, 
and  that  it  be  considered  as  actually  given  on  the  trial,  or  offered,  or 
overruled  as  improper,  the  trial  must  not  be  postponed." 

3 — Compare    the    rule    for    the    authority        note);    and    the    authorities    cited    in    W., 
of    an    attorney    as    agent    in    making    ad-        §§    1063,    2594. 
missions    out    of    court     (ante,     No.     138, 


764  JUDICIAL  ADMISSIONS.  No.  644. 

Illinois,  Rev.  St.  1845,  R^v.  St.  1874,  c.  no,  §§  43,  44:  In  asking 
a  continuance  "on  account  of  the  absence  of  testimony,"  the  party's 
or  his  agent's  affidavit  stating  the  facts  expected  to  be  proved  thereby, 
etc.,  must  be  offered;  "if  the  other  party  will  admit  the  affidavit  in  evi- 
dence, the  cause  shall  not  be  continued";  lb.,  §  45,  Laws  1867,  p.  157: 
"When  the  affidavit  is  concerning  the  evidence  of  a  witness,  the  party 
admitting  such  affidavit  shall  be  held  to  admit  only  that  if  the  absent 
witness  were  present  he  would  testify  as  alleged  in  the  affidavit,  and 
such  admission  shall  have  no  greater  lorce  or  effect  than  if  such  ab- 
sent witness  were  present  and  testified  as  alleged  in  the  affidavit,  leav- 
ing it  to  the  party  admitting  such  affidavit  to  controvert  the  statements 
contained  therein,  or  to  impeach  said  witness,  the  same  as  if  such 
witness  were  present  and  examined  in  open  court" ;  lb.  c.  38,  §  428  a, 
St.  1885,  June  26,  p.  73 :  On  such  affidavits  in  a  criminal  case,  neither 
party  shall  be  "required  to  admit  the  absolute  truth  of  the  matter  set 
up  in  the  affidavit  for  continuance,  but  only  that  such  absent  witness, 
if  present,  would  testify  as  alleged  in  the  affidavit;  and  if  it  is  so  ad- 
mitted, no  continuance  shall  be  granted,  but  the  case  shall  go  to  trial, 
and  the  party  admitting  the  evidence  shall  be  permitted  to  controvert 
the  statements  contained  in  such  affidavit  by  other  evidence,  or  to 
impeach  such  absent  witness  the  same  as  if  he  had  testified  in  person ; 
provided  that  the  Court  may  in  its  discretion  require  the  opposite  party 
to  admit  the  truth  absolutely  of  any  such  affidavit  when,  from  the  na- 
ture of  the  case,  he  may  be  of  opinion  that  the  ends  of  justice  re- 
quire it." 


ADKINS  V.  COMMONWEALTH   (1896). 
p5  Ky.  53P,  33  S.  W.  948. 

Grace,  J. :  "This  is  an  appeal  by  Joseph  Adkins  and  Jesse  Fields 
from  a  judgment  of  the  Knox  circuit  court  sentencing  each  of  them 
to  confinement  in  the  state  penitentiary  for  life,  for  the  murder 
of  Josiah  Combs.  The  killing  occurred  in  Hazard,  the  county 
seat  of  Perry  county,  on  the  23d  day  of  September,  1894;  same  being 
Sunday  and  about  7  o'clock  in  the  morning.  Indictment  against  these 
defendants  was  duly  found  by  the  grand  jury  of  Perry  county  on  the 
13th  day  of  December,  1894.  And  on  the  same  day,  a  motion  of  the 
Commonwealth  for  the  removal  of  the  cause  to  another  county,  was 
made,  accompanied  by  the  written  statement  of  the  Commonwealth's 
attorney,  in  due  form,  that  the  state  of  lawlessness  was  such  in  Perry 
county  that  a  fair  trial  of  the  accused  on  said  charge  could  not  be  had  in 
that  county.  .  .  .  Upon  this  state  of  the  record,  the  Court  made  an  order 
removing  the  cause  to  the  county  of  Knox  for  trial,  and  to  this  order  de- 
fendants excepted.  .  .  .  The  Knox  circuit  court  began  on  the  second  Mon- 
day in  April,  1895.  This  cause  seems  to  have  been  set  for  the  fourth  day 
of  the  term.     The  Commonwealth  announced  'Ready.'     The  defendants 


No.  645.  JUDICIAL  ADMISSIONS.  765 

were  not  ready,  and,  being  required,  they  filed  an  affidavit  setting  out 
the  absence  of  some  25  witnesses  by  whom  they  could  prove  important 
and  material  facts,  chiefly  relating  to  an  alibi  in  behalf  of  both  parties ; 
showing  that  in  ]\Iarch,  before,  they  had  procured  a  subpoena  for  the 
witnesses,  and  placed  same  in  the  hands  of  the  sheriff  of  Breathitt 
<:ounty,  where  said  witnesses  resided;  counsel  for  defendants  saying 
to  the  Court  that  they  did  not  desire  a  continuance  of  the  cause  for  the 
term,  provided  they  could  obtain  the  attendance  of  these  witnesses  at 
a  later  day  of  the  court.  Thereupon  the  Court  set  said  cause  for  hear- 
ing on  the  tenth  day  of  the  term.  .  .  .  On  the  calling  of  the  cause  on 
the  tenth  day  of  the  term,  the  attorney  for  the  Commonwealth  again 
announced  'Ready,'  and  the  defendants,  'Not  ready,'  and,  being  re- 
quired by  the  Court  again  to  show  cause,  they  filed  another  affidavit, 
reciting  the  absence  of  some  27  witnesses,  the  materiality  of  whose 
evidence  in  their  defense  was  duly  set  forth,  together  with  the  facts 
developed  in  their  efforts  to  procure  their  attendance  since  the  former 
calling  of  the  cause,  as  recited  herein.  And  defendants  again  asked 
a  continuance.  Upon  an  examination  of  this  last  affidavit,  the  Com- 
monwealth's attorney  agreed  that  the  same  might  be  read  upon  the 
trial  of  the  cause  as  the  testimony  of  the  absent  witnesses ;  the  counsel 
for  accused  insisting,  if  compelled  to  try  on  this  affidavit,  that  the  State 
should  admit  absolutely,  as  true,  the  facts  stated  in  this  affidavit.  This 
the  Court  overruled.  Exceptions  were  duly  taken,  and  the  Court  over- 
ruled the  motion  for  a  continuance.  ...  It  is  proper  to  add  that,  of 
the  witnesses  for  the  defense  from  Breathitt  county  who  were  relied 
upon  by  them  to  prove  an  alibi,  10  finally  appeared,  and  testified  to  a 
state  of  facts  which,  if  true,  showed  it  was  impossible  that  either  of 
the  accused  (Adkins  or  Fields)  could  have  been  in  Hazard,  Perry 
county,  Sunday  morning,  September  23,  1894,  when  the  shooting  and 
killing  of  Combs  occurred;  this  testimony  showing  the  accused  to  have 
then  been  in  Breathitt  county,  30  miles  away  from  Hazard,  at  the  hour 
of  the  shooting  of  Combs.  And  finally  it  appears,  under  the  affidavit 
which  the  accused  did  file,  and  the  statements  of  which  the  Common- 
wealth consented,  to  prevent  a  continuance,  might  be  read  as  evidence, 
that  the  statements  of  13  other  witnesses  were  read  on  this  same  mat- 
ter of  an  alibi ;  that  these  statements  were  given  with  great  detail 
and  circumstance  of  time  and  place,  and  showing  conclusively,  if  true, 
that  the  accused  could  not  have  been  in  Hazard,  Perry  county,  at  the 
time  of  the  killing  of  Josiah  Combs. 

"Counsel  for  the  defendants  contend  earnestly  that  in  all  this  pro- 
ceeding their  clients  have,  by  this  combination  of  circumstances,  .  .  . 
not  been  allowed  a  reasonable  opportunity  to  prepare  their  defense 
in  a  case  of  such  grave  magnitude  to  them.  .  .  .  Counsel  question  the 
constitutionality  of  the  act  of  1886  in  reference  to  the  trial  of  criminal 
cases,  whereby  this  proceeding  is  made  possible  under  the  Code.  Coun- 
sel say  that  this  question  has  often  been  presented  to  this  Court,  but 


766  JUDICIAL  ADMISSIONS.  No,  645. 

not  decided;  and  they  insist  in  this  case  that  it  is  due  to  their  cHents, 
as  well  as  to  the  trial  courts  of  the  state,  and  to  the  profession,  that  it 
should  be  determined. 

"The  provision  upon  which  counsel  rely  is  found  in  the  eleventh 
section  of  the  Bill  of  Rights,  adopted  as  a  part  of  the  present  Consti- 
tution of  Kentucky,  and  is  as  follows:  'In  all  criminal  prosecutions  the 
accused  has  the  right  to  be  heard  by  himself  and  counsel;  to  demand 
the  nature  and  cause  of  the  accusation  against  him;  to  meet  the  wit- 
nesses face  to  face,  and  to  have  compulsory  process  for  obtaining  wit- 
nesses in  his  favor.'  These  are  substantially  the  same  provisions  on 
this  subject  as  contained  in  the  old  Constitution  of  Kentucky.  Under 
our  Criminal  Code,  adopted  soon  after  that  Constitution  went  into 
operation,  it  was  provided  (section  i88)  :  'That  when  an  indictment 
is  called  for  trial,  or  at  any  time  previous  thereto,  the  Court  upon  suf- 
ficient cause  shown  by  either  party  may  direct  the  trial  to  be  postponed 
to  any  time  in  the  same  term,  or  to  another  term.'  And  by  section  189: 
'That  the  provisions  of  the  Code  of  Practice  in  civil  actions  in  regard 
to  the  postponement  of  the  trial  of  actions,  shall  apply  to  the  post- 
ponement of  [criminal]  prosecutions  on  application  of  defendant,  ex- 
cept that,  when  the  ground  of  application  for  a  continuance  is  the  ab- 
sence of  a  material  witness,  and  the  defendant  makes  affidavit  as  to 
the  facts  which  such  witness  would  prove,  the  continuance  shall  be 
granted,  unless  the  attorney  for  the  Commonwealth  admit  upon  the 
trial  that  the  facts  are  true.'  These  provisions  found  in  the  Code  of 
1854  became  the  rule  of  practice  in  the  trial  courts,  and,  from  time  to 
time,  it  was,  either  by  implication  or  directly  approved  by  the  Court. 
.  .  .  And  such  continued  to  be  the  law  and  rule  of  practice  in  criminal 
cases  up  to  May,  1886.  During  all  these  years  it  became  manifest  that 
the  rule  requiring  the  State  to  admit  as  absolutely  true  whatever  the 
accused  might,  by  his  ex  parte  affidavit,  say  he  could  prove  by  an  absent 
witness,  materially  impaired  the  execution  of  the  criminal  law;  that 
by  its  operation  it  was  placed  in  the  power  of  an  unscrupulous  crim- 
inal, aided  by  expert  and  ingenious  counsel,  to  long  and  indefinitely 
delay  the  trial  of  his  cause,  or  else  to  compel  the  State  to  admit  facts, 
for  the  purpose  of  a  trial,  which  often,  in  effect,  were  equivalent  to  a 
verdict  of  acquittal.  In  this  way,  and  by  the  operation  of  this  pro- 
vision, the  criminal  law  was  brought  into  disrepute,  and  by  many  held 
in  contempt,  and  the  Court  and  officers  of  the  law  censured  for  the 
long  delay,  and  final  failure,  of  justice.  To  remedy  this  crying  evil, 
the  Legislature,  in  1886,  amended  the  provisions  of  the  Code  of  1854 
in  reference  to  the  terms  on  which  the  State  might  procure  a  trial  of 
criminal  causes,  and  provided  that  the  State  might  demand  a  trial,  at 
any  term  of  the  Court  after  the  one  at  which  the  indictment  was  found, 
by  admitting,  not  that  the  facts  claimed  by  the  accused  that  he  could 
prove  by  any  absent  witness  were  true,  but  by  admitting  that,  if  such 
witness  was  present  and  testifying,  he  would  state  the  facts  as  claimed 


No.  645.  JUDICIAL  ADMISSIONS.  767 

by  the  accused  in  his  affidavit;  this  latter  amendment,  however,  still 
containing  a  provision  that  the  Court  might,  in  its  discretion,  where 
the  ends  of  justice  seemed  to  require  it,  compel  the  attorney  for  the 
Commonwealth  to  admit  the  truth  of  the  statements  contained  in  the 
affidavit  of  the  accused.  This  amendment  of  1886  also  contained 
further  clauses  authorizing  the  State  to  contradict  the  statements  of 
the  affidavit  by  other  testimony,  and  to  impeach  the  absent  witnesses 
by  whom  it  was  claimed  such  testimony  would  be  given.  This  law 
has  been  the  rule  of  practice  in  the  circuit  courts  of  the  State  since  its 
enactment.  It  is  conceded  that  its  provisions  are  widely  different, 
and  make  a  material  modification  of  the  Code  of  1854  on  this  subject. 
It  may  be  also  observed  of  this  new  provision  that,  in  practice,  it  has 
been  found  a  great  improvement  upon  the  old  law,  in  that  it  enables 
the  State,  in  a  reasonable  time  to  force  a  trial  of  its  indictments,  not- 
withstanding the  continued  and  persistent  efforts  of  the  accused  to 
delay  and  continue.  We  call  to  mind  no  provision  of  the  Criminal  Code 
that  has  been  found  so  valuable,  and  of  such  material  aid  to  accomplish 
a  speedy  trial,  as  that  contained  in  this  amendment.  ,  .  . 

"Yet  the  question  remains  whether  this  amendment  of  1886  is  con- 
stitutional. Of  the  provisions  of  Bill  of  Rights,  §  11,  before  quoted, 
as  applicable  to  this  case,  we  have  two  clauses, — one  affirming  the  right 
of  a  person  accused  of  crime  to  meet  the  witness  face  to  face  (of 
course,  this  means  the  witness  that  may  be  called  by  the  State  against 
him).  The  other  provision  is  that  the  accused  shall  have  the  right  to 
'the  compulsory  process  of  the  State  for  obtaining  witnesses  in  his 
favor.'  The  one  provision  is  equally  as  authoritative,  as  clear,  and  its 
meaning  as  obvious,  as  the  other.  No  eft'ort  has  ever  been  made  by 
the  Legislature  to  impair  in  any  degree  the  efficiency  of  the  first  clause 
quoted,  'That  accused  shall  have  the  right  to  meet  the  witnesses  [called 
against  him]  face  to  face.'  We  apprehend  that  no  such  effort  would 
be  tolerated  by  the  Courts.  And  yet  this  section  11  of  the  Bill  of 
Rights  by  no  means  contains  the  whole  law  applicable  to  the  Criminal 
Code  of  the  State.  .  .  .  The  provision  of  section  11  of  the  Constitu- 
tion, under  consideration,  is  but  a  part  of  the  whole.  It  is  but  a  pro- 
vision in  behalf  of  one  accused  of  crime  to  have  the  process  of  the 
State  to  compel  the  attendance  of  his  witnesses.  And  yet  the  question 
is  presented  whether  this  provision  shall  override  and  suborn  every 
other  duty  of  the  State  to  the  citizen.  Whether,  after  the  compliance  with 
this  provision  of  the  Constitution,  in  awarding  to  the  accused  the  com- 
pulsory process  of  the  State,  wherein  and  whereby  is  given  reasonable 
time  and  opportunity  for  the  execution  of  the  same,  and  yet,  after  all 
this  has  been  done,  and  the  actual  attendance  of  every  possible  witness 
failed  to  be  obtained,  what  shall  then  be  done?  Shall  the  accused  be 
discharged  without  trial,  and.  of  course,  without  punishment,  or  shall 
the  Legislature  make  some  other  and  further  provision  applicable  to 
that  state  of  case?     It  did  undertake  to  make  such  further  provision. 


768  JUDICIAL  ADMISSIONS,  No.  645. 

by  the  Code  of  1854,  in  allowing  the  State  a  trial  upon  admitting  as 
true  the  facts  stated  by  accused  that  he  could  prove  by  absent  wit- 
nesses. This  provision,  having,  on  a  fair  trial,  been  found  highly 
detrimental,  if  not  subversive  of  the  whole  Criminal  Code,  was  by  the 
amendment  of  1886,  under  consideration,  abandoned,  and  a  different 
mode  adopted  by  the  legislative  will.  This  consists,  as  we  have  seen, 
in  only  requiring  the  State  to  admit  that  the  absent  witnesses,  if  pres- 
ent, would  testify  as  claimed  in  the  affidavit.  On  the  face  of  the  acts  in 
question,  neither  of  them,  either  in  letter  or  spirit,  violates  the  pro- 
visions of  the  Constitution.  They  are  but  an  expression  of  the  legisla- 
tive will  as  to  what  shall  be  the  rule  of  procedure  by  the  Courts  on  a 
state  of  case  where  the  accused,  having  had  awarded  him  this  compulsory 
process  of  the  state  to  obtain  the  attendance  of  his  witnesses,  and  having 
been  allowed  a  reasonable  time  and  opportunity  to  enforce  this  writ,  yet, 
on  the  calling  of  his  case  for  trial,  finds  himself  without  the  actual  pres- 
ence of  all  the  witnesses  whom  he  desires.  ...  In  adopting  this  con- 
struction, the  prisoner  is  deprived  of  no  right  guaranteed  to  him  by 
the  Constitution.  And  the  State  is  also,  by  this  amendment  of  1886, 
enabled  to  obtain  a  trial  within  a  reasonable  time,  and  thus  give  to  all 
her  citizens  the  benefit  of  the  laws  enacted  for  their  security  and  pro- 
tection. 

"Reviewing  this  case  in  the  light  of  this  interpretation,  and  upon 
the  facts  disclosed  by  the  record,  we  feel  constrained  to  say  that  the 
accused  have  not,  in  the  trial  of  this  case,  had  awarded  them  the  com- 
pulsory process  of  the  law,  with  reasonable  time  and  opportunity  to 
obtain  the  benefit  of  same.  And  for  this  reason  the  judgment  of  con- 
viction, as  to  both  appellants,  Adkins  and  Fields,  is  reversed,  and  the 
cause  remanded  to  the  Knox  circuit  court  for  further  proceedings  therein 
not  inconsistent  with  the  principles  of  this  opinion."* 


Statutes.  England,  Rules  of  Practice,  Hilary  Term,  4  Wm.  IV 
(10  Bing.  456),  No.  20:  "Either  party,  after  plea  pleaded,  and  a 
reasonable  time  before  trial,  may  give  notice  ...  of  his  inten- 
"*"  tion  to  adduce  in  evidence  certain  written  or  printed  documents; 
and  unless  the  adverse  party  shall  consent,  by  indorsement  on  such  notice, 
within  forty-eight  hours,  to  make  the  admission  specified,"  the  offering 
party  may  move  that  the  opponent  show  cause,  and  "the  judge  shall, 
if  he  think  the  application  reasonable,  make  an  order  that  the  costs  of 
proving  any  document  specified  in  the  notice,  which  shall  be  proved  at 
the  trial  to  the  satisfaction  of  the  judge  or  presiding  officer,  shall  be 
paid  by  the  party  so  required,  whatever  may  be  the  result  of  the  cause" ; 
provided  that  the  judge  "may  give  time  for  inquiry  or  examination 
of  the  documents  intended  to  be  offered  in  evidence,  and  give  such 

4 — Compare  the  authorities  cited  in  W.,   §   2593. 


( 


No.  646.  JUDICIAL  ADMISSIONS.  769 

directions  for  inspection  and  examination,  and  impose  such  terms  upon 
the  party  requiring  the  admission,  as  he  shall  think  fit";  and  no  costs 
of  proving  a  document  shall  be  allowed  "to  any  party  who  shall  have 
adduced  the  same  in  evidence  on  any  trial,  unless  he  shall  have  given 
such  notice  as  aforesaid,  and  the  adverse  party  shall  have  neglected  or 
refused  to  make  such  admission"  or  the  judge  have  indorsed  the  appli- 
cation as  not  reasonable  to  be  granted. 

California,  C.  C.  P.  1872,  §  447,  as  amended  by  St.  1874:  "When 
an  action  is  brought  upon  a  written  instrument,  and  the  complaint  con- 
tains a  copy  of  such  instrument,  or  a  copy  is  annexed  thereto,  the  genu- 
ineness and  due  execution  of  such  instrument  are  deemed  admitted, 
unless  the  answer  denying  the  same  be  verified";  lb.  §  448:  "When 
the  defense  to  an  action  is  founded  on  a  written  instrument,  and  a 
copy  thereof  is  contained  in  the  answer,  or  is  annexed  thereto,  the 
genuineness  and  due  execution  of  such  instrument  are  deemed  ad- 
mitted, unless  the  plaintiff  file  with  the  clerk,  within  ten  days  after 
receiving  a  copy  of  the  answer,  an  affidavit  denying  the  same,  and 
serve  a  copy  thereof  on  the  defendant" ;  lb.  §  449,  as  amended  by  St. 
1880:  "But  the  execution  of  the  instrument  mentioned  in  the  two  pre- 
ceding sections  is  not  deemed  admitted  by  a  failure  to  deny  the  same 
under  oath,  if  the  party  desiring  to  controvert  the  same  is  upon  demand 
refused  an  inspection  of  the  original.  Such  demand  must  be  in  writing, 
served  by  copy  upon  the  adverse  party  or  his  attorney,  and  filed  with 
the  papers  in  the  case." 

Illinois,  Rev.  St.  1874,  c.  no,  §  34,  Rev.  St.  1845,  p.  415,  §  14:  "No 
person  shall  be  permitted  to  deny,  on  trial,  the  execution  or  assignment 
of  an  instrument  in  writing,  whether  sealed  or  not,  upon  which  any 
action  may  have  been  brought,  or  which  shall  be  pleaded  or  set  up 
by  way  of  defense  or  set-off,  or  is  admissible  under  the  pleadings  when 
a  copy  is  filed,  unless  the  person  so  denying  the  same  shall,  if  de- 
fendant, verify  his  plea  by  affidavit,  and  if  plaintiff  shall  file  his  affi- 
davit denying  the  execution  or  assignment  of  such  instrument;  pro- 
vided, if  the  party  making  such  denial  be  not  the  party  alleged  to  have 
executed  or  assigned  such  instrument,  the  denial  may  be  made  on  the 
information  and  belief  of  such  party." 

New  York,  C.  C.  P.  1877,  §  735 :  "The  attorney  for  a  party  may, 
at  any  time  before  the  trial,  exhibit  to  the  attorney  for  the  adverse 
party  a  paper  material  to  the  action,  and  request  a  written  admission 
of  its  genuineness.  If  the  admission  is  not  given,  within  four  days 
after  the  request,  and  the  paper  is  proved  or  admitted  on  the  trial,  the 
expenses,  incurred  by  the  party  exhibiting  it,  in  order  to  prove  its 
genuineness,  must  be  ascertained  at  the  trial  and  paid  by  the  party 
refusing  the  admission ;  unless  it  appears,  to  the  satisfaction  of  the 
Court,  that  there  was  a  good  reason  for  the  refusal. "° 

5 — Compare  the  authorities  cited  in   W.,        duced    by    a    party    claiming    under    them 
5   2596;    and   the   rule    for   documents  pro-         (ante,    No.    2:8). 


770  JUDICIAL  ADMISSIONS.  No.  647. 

CARVER  V.  CARVER  (1884). 
97  Ind.  497,  510.^ 

ZoLLARS,  J.:  "Action  by  appellee  in  relation  to  real  estate;  verdict 
in  her  favor,  and  over  a  motion  for  a  new  trial  and  other  motions, 
judgment  upon  the  verdict  that  she  is  the  owner,  and  entitled 
^^^  to  the  possession,  of  the  undivided  one-third  of  the  real  estate, 
and  for  $125  against  appellant  William  Carver  for  the  detention  thereof. 
.  .  .  This  brings  us  to  the  question  of  the  sufificiency  of  the  paragraphs 
of  the  complainant,  as  against  any  of  the  defendants.  .  .  .  The  second 
paragraph  is  quite  lengthy,  tedious,  and  uncertain  in  detail.  The  sub- 
stance of  it  is  as  follows:  In  1853,  appellee's  father  gave  to  her  lands 
in  Rush  county,  subject  to  a  small  encumbrance,  and  conveyed  it  to  a 
trustee,  to  be  held  by  him  until  her  husband  should  pay  off  the  en- 
cumbrance, when  the  trustee  should  convey  it  to  her.  In  1854,  the 
trustee,  with  her  consent,  sold  the  land  for  enough  to  pay  off  the  en- 
cumbrance and  $2,500  additional.  In  the  same  year,  her  husband,  Ira 
Carver,  and  appellant  William  Carver,  purchased  land  in  Henry  county, 
and  paid  for  the  same  with  appellee's  $2,500.  With  her  consent,  the 
money  was  thus  applied  as  an  investment  for  her.  The  land  in  Henry 
county  having  been  sold,  appellee's  husband,  acting  as  her  agent,  for 
her  use  and  benefit,  purchased  the  land  in  controversy,  and  paid  for 
the  same  with  the  proceeds  of  the  Henry  county  land.  By  mistake, 
the  deed  for  this  land  was  not  made  to  appellee,  but  to  her  husband. 
In  1857,  her  husband  was  of  weak  mind  and  financially  embarrassed. 
Appellant  William  Carver,  with  knowledge  of  the  husband's  condition, 
mentally  and  financially,  and  that  appellee's  money  paid  for  the  land, 
and  with  the  intent  to  cheat  and  defraud  her  out  of  the  land,  confederated 
with  the  husband,  and  a  justice  of  the  peace,  to  get  her  to  sign  a  deed 
to  him,  William  Carver.  To  accomplish  this,  they  and  each  of  them, 
and  especially  William  Carver,  represented  to  her  that  her  husband 
was  overwhelmingly  in  debt,  and  that  his  creditors  were  about  to  arrest 
and  imprison  him ;  that  he,  William  Carver,  was  security  for  her  hus- 
band for  a  large  amount;  that  if  she  would  execute  to  him  a  mortgage 
upon  the  land  to  secure  him,  he  would  save  her  husband  from  arrest 
and  imprisonment,  and  save  the  land  for  her  and  her  children,  and 
that  in  no  other  way  could  this  be  done.  Believing  and  relying  upon 
these  representations,  all  of  which  were  false,  and  known  to  the  parties 
to  be  false,  she  signed  what  they  told  her  was  a  mortgage.  She  never 
made  any  deed  to  William  Carver,  and  the  deed  under  which  he  claims 
to  hold  the  land  is  as  to  her  a  forgery.  During  all  this  time  she  was 
the  wife  of  Ira  Carver,  and  continued  to  be  and  to  live  with  him  as  such 
until  1875,  when  he  died.  She  had  no  knowledge  of  the  deed  until 
1870.  .  .  . 

6 — The  part  of  the  opinion   in  this  case        considered    in    connection    with    Nos,    606- 
dealing  with  the  burden  of  proof  is  to  be        610,  ante. 


No.  647.  JUDICIAL  ADMISSIONS.  771 

"It  is  conceded  by  appellants  in  argument,  that  Ira  Carver,  husband 
of  appellee,  was  the  owner  of  the  land  described  in  the  second  para- 
graph of  the  complaint  and  in  the  judgment,  prior  to  the  20th  day  of 
November,  1857,  at  which  time  he  made  a  deed  for  the  same  to  appel- 
lant William  Carver.  Their  whole  claim  rests  upon  the  deed  from 
him.  It  is  really  conceded,  too,  and  shown  by  the  evidence,  that  ap- 
pellee, as  the  widow  of  Ira  Carver,  who  died  in  1875,  if  she  did  not 
join  in  that  deed,  is  the  owner  of  and  entitled  to  the  possession  of  the 
undivided  one-third  of  the  said  real  estate,  except,  perhaps,  what  may 
have  been  sold  by  Carver.  It  is  contended,  however,  that  she  did  join 
in  that  deed.  Whether  she  did  or  not,  is  the  main  question  of  fact 
in  the  cause. 

"Prior  to  the  trial,  appellants  served  a  notice  on  appellee,  that  upon 
the  trial  they  would  introduce  in  evidence  the  said  deed,  which  bears 
the  names  of  appellee  and  her  husband  as  grantors.  Upon  the  service 
of  this  notice,  appellee  filed  her  affidavit  denying  the  execution  of  the 
deed.  Proof  of  execution  having  been  made,  which,  to  the  trial  Court, 
was  sufficient  to  entitle  the  deed  to  be  read  in  evidence,  it  was  so  read. 
The  third  instruction  to  the  jury  was  as  follows:  'The  defendants 
have  read  in  evidence  a  deed  purporting  to  be  executed  by  Ira  Carver 
and  plaintiff,  Esther  J.  Carver,  conveying  said  real  estate  to  the  de- 
fendant William  Carver.  The  burden  of  proving  that  the  plaintiff 
.  .  .  executed  said  deed  is  upon  the  defendants,  and  if  the  defendants 
have  not  proved  by  a  preponderance  of  all  the  evidence  in  the  cause 
that  said  plaintiff  did  sign  her  name  to  said  deed,  the  plaintiff  is  en- 
titled to  a  verdict  in  her  favor,  no  matter  how  innocent  the  defendants 
may  have  been  in  their  purchase.  If,  however,  you  find  that  Esther 
J.  Carver  did  sign  her  name  to  said  deed  then  your  verdict  must  be 
for  the  defendants,  whether  the  deed  bears  the  true  date  of  its  execution 
or  not;  and  this  must  be  your  verdict,  though  the  plaintiff,  when  she 
signed  said  deed,  believed  it  to  be  a  mortgage.  You  will  then  see  that 
an  important  point  in  controversy  is  as  to  whether  the  plaintiff  signed 
said  deed,  and  this  you  will  determine,  as  well  as  all  other  facts  sub- 
mitted to  you,  from  a  careful  consideration  of  all  the  testimony  and 
circumstances  in  evidence,  for  you  are  the  exclusive  judges  of  the  evi- 
dence and  the  credibility  of  the  witnesses,  and  determine  from  the 
evidence  what  it  proves  and  what  it  does  not  prove.'  Several  objec- 
tions are  urged  against  this  instruction.  As  related  to  the  deed  the 
argument  is,  first,  that  after  appellants  had  made  such  a  case  as  en- 
titled the  deed  to  be  read  in  evidence,  the  burden  of  proof  was  shifted 
to  appellee  to  prove  the  non-execution  of  the  deed ;  second  that  as 
the  execution  of  the  deed  seems  to  have  been  acknowledged  before  an 
officer  authorized  to  take  acknowledgments,  appellee  can  not,  in  this 
action,  dispute  the  execution.  These  two  objections  are  so  related 
that  we  consider  them  together. 

I.     "The  rule  is  well  settled  that  in  the  absence  of  statutes  upon 


772  JUDICIAL  ADMISSIONS.  Ko.  647. 

the  subject,  the  grantee,  offering  a  deed  in  evidence,  must  prove  its 
execution,  whether  it  has  been  acknowledged  and  recorded  or  not; 
especially  is  this  so  if  its  execution  is  put  in  issue  by  a  plea  of  non  est 
factum.  The  statutes  of  this  State,  like  those  of  many  of  the  other 
States,  have  made  material  innovations  upon  this  rule.  The  code  of 
1852,  in  force  when  this  cause  was  tried,  provided  that  where  a  writing, 
purporting  to  have  been  executed  by  one  of  the  parties,  is  the  founda- 
tion of,  or  is  referred  to  in  any  pleading,  it  may  be  read  in  evidence 
on  the  trial  of  the  cause  against  such  party  without  proving  its  execu- 
tion, unless  its  execution  be  denied  by  affidavit  before  the  commencement 
of  the  trial,  or  unless  denied  by  a  pleading  under  oath.  .  .  .  Section 
304,  2  R.  S.  1876,  p.  158,  provided  as  follows:  'If  either  party  at  any 
time  before  trial  allow  the  other  an  inspection  of  any  writing,  material 
to  the  action,  whether  mentioned  in  the  pleadings  or  not,  and  deliver 
to  him  a  copy  thereof,  with  notice  that  he  intends  to  read  the  same  in 
evidence  on  the  trial  of  the  cause,  it  may  be  so  read,  without  proof  of 
its  genuineness,  or  execution,  unless  denied  by  affidavit  before  the 
commencement  of  the  trial.'  A  failure  to  deny  the  execution  by  a 
pleading  under  oath  has  been  held  to  be  so  far  an  admission  of  the 
genuineness  of  the  instrument  as  to  preclude  its  being  controverted  by 
proof.  This  rule  would,  perhaps,  apply  to  a  case  like  this  where  the 
denial  is  by  affidavit.  The  reason  of  this  ruling,  as  stated  in  the  earliest 
decision  upon  the  subject  under  these  statutes,  is  that  the  party  relying 
upon  the  instrument  has  a  right  to  be  forewarned  of  any  contemplated 
attack  upon  it.  .  .  .  These  statutes  clearly  include  deeds,  and  recog- 
nize the  rule  as  we  have  stated  it  to  be,  in  the  absence  of  statutes. 
Their  purpose  is  not  to  shift  the  burden  of  proof,  but  simply  to  re- 
lieve the  party  relying  upon  a  written  instrument  of  the  burden  of 
making  proof  of  its  execution,  unless  the  execution  be  denied  under 
oath.  .  .  .  The  affidavit,  or  plea  of  non  est  factum,  throws  back  upon 
the  other  party  the  burden  of  proving  the  execution  of  the  instrument, 
and  thus  the  parties  occupy  the  position  they  would  have  occupied 
were  there  no  statutes  upon  the  subject. 

"After  making  a  prima  facie  case  in  favor  of  the  execution  of  the 
writing,  it  may  be  read  in  evidence.  The  party  making  such  proof 
may  rely  upon  it,  and  in  the  absence  of  countervailing  evidence,  it  will 
be  sufficient  to  make  his  case.  This,  however,  does  not  shift  the  burden 
of  the  issue  to  the  party  denying  the  execution.  In  the  case  of  Fay  v. 
Burditt,  81  Ind.  433  (42  Am.  R.  142),  it  was  questioned,  whether  in 
any  case,  it  is  proper  to  say  that  the  burden  of  an  affirmative  issue 
shifts  in  the  course  of  a  trial  from  one  party  to  the  other.  We  think, 
upon  further  consideration,  that  there  is  no  hazard  in  saying  that  it 
does  not  as  to  any  single  proposition,  such  as  to  whether  or  not  a 
written  instrument  was  in  fact  executed  by  the  party  denying  the 
execution.  When  the  execution  of  an  instrument  is  thus  denied,  the 
question  is,  did  the  party  thus  denying  in  fact  execute  it?     The  party 


I 


No.  647.  JUDICIAL  ADMISSIONS.  773 

relying  upon  it  has  the  affirmative  of  that  issue.  The  burden  is  upon 
him  to  estabhsh  that  affirmative,  and  that  burden  will  remain  upon 
him  until  he  establishes  it  to  the  satisfaction  of  the  jury,  not  by  a 
prima  facie  case  alone,  but  by  such  proof  as  will  withstand  and  over- 
throw all  of  the  evidence  to  the  contrary.  There  must  be  more  than 
an  equipoise  of  the  testimony ;  there  must  be  a  preponderance  in  favor 
of  the  execution.  If,  upon  the  making  of  a  prima  facie  case,  the  burden 
shifts  to  the  other  side,  then  it  would  follow  that  when  the  prima  facie 
case  is  overthrown  by  weightier  testimony,  the  burden  shifts  back 
again.  To  say  that  the  burden  thus  shifts,  is  to  say  that  it  is  con- 
stantly shifting  from  the  stronger  to  the  weaker  side,  as  the  testimony 
may  make  one  side  or  the  other  stronger.  Of  course,  when  a  prima 
facie  case  is  made  out  in  a  case  like  this,  the  burden  is  upon  the  other 
side  to  meet  it,  or  suffer  defeat.  .  .  .  This  imposition  of  the  burden  to 
meet  a  prima  facie  case,  or  to  show  matter  in  avoidance,  is  not  the 
shifting  of  the  burden  of  proof  as  to  the  fact  in  issue.  Appellants 
made  their  defence  under  the  general  denial,  as  they  had  a  right  to  do 
under  the  statute.  By  introducing  in  evidence  the  deed  from  Williams 
to  Ira  Carver,  appellee's  husband,  and  the  deed  which  purports  to  have 
been  executed  by  appellee  and  her  husband,  they  made  their  defence, 
as  against  appellee's  claim,  dependent  upon  the  validity  of  the  latter 
deed.  The  defence  thus  took  the  shape  of  an  affirmative  defence,  a 
defence  of  confession  and  avoidance ;  a  confession  of  title  in  appellee 
as  the  widow  of  Ira  Carver,  and  of  avoidance,  by  the  deed  from  her 
and  husband  to  appellant  William  Carver.  By  the  notice  and  affidavit 
in  relation  to  this  latter  deed,  the  burden  of  proving  its  execution  was 
clearly  thrown  upon  appellants,  and  was  not  shifted  from  them  by  their 
making  out  a  prima  facie  case. 

2.  "The  deed  purporting  to  have  been  executed  by  appellee  and 
her  husband,  apparently,  was  properly  acknowledged  and  recorded. 
We  cannot  hold,  however,  that  the  certificate  of  acknowledgment  is 
conclusive  upon  appellee.  .  .  .  We  think,  however,  that  under  our 
statutes  since  1852,  a  certificate  of  acknowledgment  in  proper  form 
makes  a  prima  facie  case  in  favor  of  the  execution  of  the  instrument, 
not  only  as  to  innocent  third  parties,  but  as  to  the  parties  to  the  in- 
strument also.  The  statutes  require  that  deeds  shall  be  acknowledged. 
To  entitle  a  deed  to  be  recorded  it  must  be  acknowledged.  ...  A 
record  of  a  deed  without  such  acknowledgment  is  not  competent  evi- 
dence against  any  one.  An  acknowledgment  is  not  essential  to  the 
validity  of  a  deed,  as  between  the  parties  to  it,  but  it  is  apparent  upon 
an  examination  of  the  statutes  that,  as  to  all  parties,  it  is  a  very  im- 
portant matter.  It  is  essential  to  the  record  of  a  deed,  and  thus  be- 
comes the  basis  of  notice  by  record.  The  deed  may  be  recorded ;  the 
record  becomes  notice  to  the  world,  and  may  be  used  as  evidence,  with- 
out the  production  of  the  deed  or  proof  of  its  execution,  because  the 
acknowledgment  is  evidence  of  the  execution.  ...  It  is  provided,  how- 


774 


JUDICIAL  ADMISSIONS. 


No.  647. 


ever,  that  neither  the  certificate  of  acknowledgment  of  a  deed,  nor  the 
record,  nor  the  transcript  of  the  record  thereof,  shall  be  conclusive,  but 
may  be  rebutted,  and  the  force  and  efifect  thereof,  contested  by  any  one 
affected  thereby.  I  R.  S.  1876,  p,  368,  section  32;  section  2954,  R.  S. 
1 88 1.  The  reasonable  construction  of  these  several  sections  of  the  sta- 
tute is,  we  think,  that  the  certificate  of  acknowledgment  is  prima  facie 
evidence  of  the  execution  of  the  deed,  and  that  in  all  cases  where  the 
record  is  competent  evidence,  the  deed  is  also  competent,  without  further 
proof  of  its  execution. 

"This,  however,  does  not  throw  the  burden  of  proof  upon  the  party 
denying  the  execution.  In  this  case  appellants  produced  the  deed,  as- 
serting its  genuineness.  That  was  denied  by  appellee.  Appellants  had 
the  affirmative  of  the  issue,  and  were  bound  to  establish  it  by  a  pre- 
ponderance of  testimony  or  sufifer  defeat.  The  certificate  of  acknowl- 
edgment operated  as  evidence  in  support  of  the  genuineness  of  the 
deed,  and  made  a  prima  facie  case  for  appellants,  very  much  as  the 
presumption  of  sanity  operates  as  evidence  in  behalf  of  the  State  in 
criminal  prosecutions.  The  burden  was  upon  appellee  to  meet  and 
overthrow  the  prima  facie  case,  but  the  burden  was  not  upon  her  to 
prove  the  non-execution  of  the  deed.  The  Court  below  did  not  err, 
therefore,  in  charging  the  jury  that  the  burden  was  upon  appellants  to 
prove  by  a  preponderance  of  the  testimony  that  appellee  executed  the 
deed." 


APPENDIX   OF   STATUTES.  775 


APPENDIX   I. 

TYPICAL  STATUTES  AFFECTING  THE  QUALI- 
FICATIONS OF  WITNESSE.S^ 

ENGLAND. 

1814,  St.  54  Geo.  Ill,  c.  170  (rated  inhabitants  of  parish,  etc.,  are  to 
be  competent  in  certain  cases). 

18^^,  St.  3^4  Wm.  IV,  c.  42  (removes  the  disqualification  by  reason 
of  a  verdict  being  usable  for  or  against  the  w^itness). 

1840,  St.  s  &  4  Vict.  c.  26  (similar  to  St.  1814). 

1843,  St.  6  &  y  Vict.  c.  85,  Lord  Denman's  Act:  "Whereas  the  in- 
quiry after  truth  in  courts  of  justice  is  often  obstructed  by  incapacities 
created  by  the  present  law,  and  it  is  desirable  that  full  information  as  to 
the  facts  in  issue,  both  in  criminal  and  in  civil  cases,  should  be  laid  be- 
fore the  persons  who  are  appointed  to  decide  upon  them,  and  that  such 
persons  should  exercise  their  judgment  on  the  credit  of  the  witnesses 
adduced  and  on  the  truth  of  their  testimony.  Now  therefore  be  it 
enacted,  That  no  person  offered  as  a  witness  shall  hereafter  be  excluded 
by  reason  of  incapacity  from  crime  or  interest  from  giving  evidence," 
provided  that  this  shall  not  render  competent  "any  party  to  any  suit," 
"or  the  husband  or  wife  of  such  person." 

1846,  St.  g  &  10  Vict.  c.  P5 :  In  suits  in  the  county  courts,  "the  par- 
ties thereto,  their  wives  and  all  other  persons"  may  be  examined. 

1851,  St.  14  &■  15  Vict.  c.  99,  %  I  (St.  6  &  7  Vict,  repealed  as  to 
the  proviso  about  parties)  ;  §  2  (parties,  and  persons  on  whose  behalf 
a  suit  is  brought  or  defended,  are  to  be  competent  and  compellable)  ;  §  3 
(a  person  charged  with  an  offence  indictable  or  punishable  with  sum- 
mary conviction,  is  not  to  be  affected  by  statute;  neither  husband  nor 
wife  is  to  be  "competent  or  compellable  to  give  evidence  for  or  against" 
the  other  in  criminal  proceedings)  ;  §  4  (an  action  for  breach  of  promise 
of  marriage  or  in  consequence  of  adultery  is  not  to  be  affected). 

I— The  rules  of  the  common  law  re-  to  pl.ice  here,  for  reference,  under  the 
specting  the  qualifications  of  witnesses  different  topics,  certain  typical  statutes  af- 
were  highly  restrictive.  In  the  progress  fecting  the  qualifications  of  witnesses  as 
of  thought,  these  restrictions  came  in  to  organic  and  emotional  capacity,  i.  e. 
many  instances  to  be  recognized  as  il-  insanity,  infancy,  infamy,  interst,  and  mar- 
liberal  and  unnecessary;  and  legislation  has  ital  relationship.  Tlie  statutes  which  af- 
in  several  important  respects  abolished  feet  other  rules  of  testimonial  evidence, 
them  either  wholly  or  in  part.  The  stat-  notably  the  privileged  topics  of  tcsti- 
utes  affecting  these  changes  have  often  mony,  are  not  here  included  so  far  as 
embodied  in  the  same  enactment  the  they  are  grammatically  separable, 
change   of  diverse  rules.      It   is  convenient 


776  APPENDIX  OF   STATUTES. 

185s,  St.  16  &  //  Vict.  c.  8 J,  §  /;  "Husbands  and  wives  of  the 
parties"  shall  be  competent  and  compellable  to  testify  "on  behalf  of 
either  or  any  of  the  parties."  §  2:  But  nothing  shall  render  husband 
or  wife  competent  or  compellable  to  testify  for  or  against  the  other  "in 
any  criminal  proceeding  or  in  any  proceeding  instituted  in  consequence 
of  adultery."  §  3 :  Neither  shall  be  "compellable  to  disclose  any  com- 
munication made  to"  him  or  her  by  the  other  "during  the  marriage." 

i8§p,  St.  22  &  2 J  Vict.  c.  <5r,  §  (5  (on  a  wife's  petition  for  divorce 
founded  on  adultery,  coupled  with  cruelty  or  desertion,  both  husband 
and  wife  are  competent  and  compellable  as  to  the  cruelty  or  desertion). 

i86g,  St.  32  &  55  Vict.  c.  68:  "Whereas  the  discovery  of  truth  in 
courts  of  justice  has  been  signally  promoted  by  the  removal  of  the  re- 
strictions on  the  admissibility  of  witnesses  and  it  is  expedient  to  amend 
the  law  of  evidence  with  the  object  of  still  further  promoting  such  dis- 
covery." §  2  (parties  to  an  action  for  breach  of  marriage  promise 
are  competent).  §  3  (parties  to  any  proceeding  in  consequence  of 
adultery,  and  their  husbands  and  wives,  are  to  be  competent;  but  no 
answer  as  to  a  witness'  own  adultery  is  to  be  compellable,  unless  the 
witness  has  already  testified  in  disproof  thereof). 

i8yY,  St.  40  &  41  Vict.  c.  14  (on  an  indictment  or  proceeding  to  try 
or  enforce  a  civil  right  only,  the  defendant,  and  the  defendant's  wife  or 
husband,  are  to  be  competent  and  compellable). 

1885,  St.  48-p  Vict.  c.  6p,  ^4:  In  prosecutions  for  rape  under  age, 
where  the  girl  in  question,  "or  any  other  child  of  tender  years"  does 
not  in  the  Court's  opinion  understand  the  nature  of  an  oath,  the  child's 
evidence  may  be  given  without  oath,  if  in  the  Court's  opinion  the  child 
"is  possessed  of  sufficient  intelligence  to  justify  the  reception  of  the  evi- 
dence and  understands  the  duty  of  speaking  the  truth";  with  a  proviso 
requiring  corroboration. 

i88p,  St.  52-s  Vict.  44,  §  8  (similar). 

i8p8,  St.  61  &  62  Vict.  c.  s6,  §  i:  "Every  person  charged  with  an 
offence,  and  the  wife  or  husband,  as  the  case  may  be,  of  the  person 
charged,  shall  be  a  competent  witness  for  the  defence  at  every  stage  of 
the  proceedings";  the  accused  thus  testifying,  "shall  not  be  asked,  and 
if  asked  shall  not  be  required  to  answer,  any  question  tending  to  show 
that  he  has  committed  or  been  convicted  or  been  charged  with  any  of- 
fence other  than  that  wherewith  he  is  then  charged." 


1 


UNITED  STATES  FEDERAL  CONGRESS. 

Revised  Statutes,  1878,  §  858:  "In  the  courts  of  the  United  States, 
no  witness  shall  be  excluded  in  any  action  on  account  of  color,  or  in  any 
civil  action  because  he  is  a  party  to  or  interested  in  the  issue  tried; 


FEDERAL.  777 

provided,  that  in  actions  by  or  against  executors,  administrators,  or 
guardians,  in  which  judgment  may  be  rendered  for  or  against  them, 
neither  party  shall  be  allowed  to  testify  against  the  other,  as  to  any 
transaction  with  or  statement  by  the  testator,  intestate,  or  ward,  unless 
called  to  testify  thereto  by  the  opposite  party,  or  required  to  tes- 
tify thereto  by  the  Court.  In  all  other  respects,  the  laws  of  the 
State  in  which  the  Court  is  held  shall  be  the  rules  of  decision  as  to 
the  competency  of  witnesses  in  the  courts  of  the  United  States  in  trials 
at  common  law  and  in  equity  and  admiralty." 

Ih.  §  1078:  "No  witness  shall  be  excluded  in  any  suit  in  the  Court 
of  Claims  on  account  of  color." 

Ih.  §  1079:  "No  claimant,  nor  any  person  from  or  through  whom 
any  such  claimant  derives  his  alleged  title,  claim,  or  right  against  the 
United  States,  nor  any  person  interested  in  any  such  title,  claim,  or 
right,  shall  be  a  competent  witness  in  the  Court  of  Claims  in  supporting 
the  same,  and  no  testimony  given  by  such  claimant  or  person  shall  be 
used  except  as  provided  in  the  next  section  [f.  e.,  when  taken  and 
offered  by  the  government  attorney]";  repealed  by  St.  1883,  infra. 

Ih.  §  1977:  "All  persons  within  the  jurisdiction  of  the  United  States 
shall  have  the  same  right  in  every  State  and  Territory  to  .  .  .  give  evi- 
dence ...  as  is  enjoyed  by  white  citizens." 

Ih.  §  2140:  "Indians  shall  be  competent  witnesses"  in  all  cases 
concerning  illegal  sale  of  liquor  to  Indians. 

lb.  §  5392:  Every  person  guilty  of  perjury  or  subornation  of  perjury 
shall  "be  incapable  of  giving  testimony"  until  judgment  is  reversed. 

St.  igos,  Feh.  5,  c.  487,  §  7,  32  Stat.  L.  798:  The  Bankruptcy  Act, 
1898,  §  21,  subd.  a,  amended  so  as  to  permit  the  Court  "to  require  any 
designated  person,  including  the  bankrupt  and  his  wife,"  to  appear  for 
examination  "concerning  the  acts,  conduct,  or  property  of  a  bankrupt 
whose  estate  is  in  process  of  administration  under  this  Act ;  provided 
that  the  wife  may  be  examined  only  touching  business  transacted  by  her 
or  to  which  she  is  a  party,  and  to  determine  the  fact  whether  she  has 
transacted  or  been  a  party  to  any  business  of  the  bankrupt." 

St.  1874,  June  22,  c.  391,  §  8:  "No  officer,  or  other  person  entitled 
to  or  claiming  compensation  under  any  provision  of  this  act  [against 
evading  customs  laws]  shall  be  thereby  disqualified  from  becoming  a 
•witness  in  any  action,  suit,  or  proceeding  for  the  recovery,  mitigation, 
or  remission  thereof,"  and  the  defendant  may  testify. 

St.  1878,  March  16,  c.  37:  "In  the  trial  of  all  indictments,  informa- 
tions, complaints,  and  other  proceedings  against  persons  charged  with 
the  commission  of  crimes,  offences,  and  misdemeanors,  in  the  United 
States  courts,  territorial  courts,  and  courts  martial,  and  courts  of  in- 
quiry, in  any  State  or  Territory,  including  the  District  of  Columbia,  the 


778  APPENDIX   OF   STATUTES. 

person  so  charged  shall,  at  his  own  request  but  not  otherwise,  be  a  com- 
petent witness.  And  his  failure  to  make  such  request  shall  not  create 
any  presumption  against  him." 

St.  i88s,  March  5,  c.  116,  §  6:  In  cases  in  the  Court  of  Claims,  no 
person  is  to  be  excluded  "because  he  or  she  is  a  party  to  or  interested  in 
the  same." 

St.  188/,  March  5,  c.  359,  §  8  (similar;  adding  "any  plaintiff  or 
party  in  interest  may  be  examined  as  a  witness  on  the  part  of  the  gov- 
ernment";   §  1079  of  Rev.  St.  1878,  repealed). 

St.  i88y,  March  3  c.  397,  §  i :  "In  any  proceeding  or  examination 
before  a  grand  jury,  a  judge,  justice,  or  a  United  States  commissioner, 
or  a  court,  in  any  prosecution  for  bigamy,  polygamy,  or  unlawful  co- 
habitation, under  any  statute  of  the  United  States,  the  lawful  husband 
or  wife  of  the  accused  shall  be  a  competent  witness,  and  may  be  called, 
but  shall  not  be  compelled  to  testify  in  such  proceeding,  examination, 
or  prosecution,  without  the  consent  of  the  husband  or  wife,  as  the  case 
may  be.  And  such  witness  shall  not  be  permitted  to  testify  as  to  any 
statement  or  communication  made  by  either  husband  or  wife  to  each 
other,  during  the  existence  of  the  marriage  relation,  deemed  confidential 
at  common  law." 


CALIFORNIA.! 

Code  of  Civil  Procedure,  1872,  §  /S/p;  "All  persons,  without  ex- 
ception, otherwise  than  is  specified  in  the  next  two  sections,  who,  having 
organs  of  sense,  can  perceive,  and,  perceiving,  can  make  known  their 
perceptions  to  others,  may  be  witnesses.  Therefore,  neither  parties 
nor  other  persons  who  have  an  interest  in  the  event  of  an  action  or 
proceeding  are  excluded;  nor  those  who  have  been  convicted  of  crime; 
nor  persons  on  account  of  their  opinions  on  matters  of  religious  belief; 
although  in  every  case  the  credibility  of  the  witness  may  be  drawn  in 
question,  as  provided  in  section  1847." 

lb.  §  1880:  "The  following  persons  cannot  be  witnesses:  i.  Those 
who  are  of  unsound  mind  at  the  time  of  their  production  for  examina- 
tion. 2.  Children  under  ten  years  of  age,  who  appear  incapable  of  re- 
ceiving just  impressions  of  the  facts  respecting  which  they  are  exam- 
ined, or  of  relating  them  truly.  3.  Parties  or  assignors  of  parties  to  an 
action  or  proceeding,  or  persons  on  behalf  of  whom  an  action  or  pro- 
ceeding is  prosecuted,  against  an  executor  or  administrator  upon  a  claim 

I— All    the    Code    Commissioners'    amend-  Dunne,     134    Cal.    291,    66    Pac.    478;    but 

ments   of    1901    were    held    unconstitutional  they  have  been  inserted  here,  because  they 

and  void   (on   formal   grounds  affecting  the  may   later   be   validly   enacted. 
Commissioners'     authority),     in     Lewis     v. 


I 


CALIFORNIA.  779 

or  demand  against  the  estate  of  a  deceased  person,  as  to  any  matter  of 
fact  occurring  before  the  death  of  such  deceased  person."  The  foregoing 
sub-sect.  3  was  replaced  in  1901  by  the  following  Commissioners'  amend- 
ment: "Upon  the  trial  of  an  action  or  the  hearing  upon  the  merits 
of  a  special  proceeding,  a  party  or  a  person  interested  in  the  event,  or 
a  person  from,  through,  or  under  whom  such  party  or  interested  person 
derives  his  interest  or  title,  by  assignment  or  otherwise,  or  the  husband 
or  wife  of  any  such  party  or  person,  must  not  be  examined  as  a  wit- 
ness, in  his  own  behalf  or  interest,  or  in  behalf  of  the  party  succeeding 
to  his  title  or  interest,  or  in  behalf  of  his  or  her  husband  or  wife,  against 
the  executor,  administrator,  or  survivor  of  a  deceased  person,  or  the 
guardian  of  an  incompetent  person,  or  a  person  deriving  his  title  or 
interest  from,  through,  or  under  a  deceased  or  incompetent  person  by 
assignment  or  otherwise,  as  to  any  matter  of  fact  occurring  during 
the  lifetime  of  such  deceased  person,  or  occurring  while  such  incom- 
petent person  was  competent."  » 

Ih.  §  1881 :  "There  are  particular  relations  in  which  it  is  the  policy 
of  the  law  to  encourage  confidence  and  to  preserve  it  inviolate ;  there- 
fore, a  person  cannot  be  examined  as  a  witness  in  the  following  cases: 
I.  A  husband  cannot  be  examined  for  or  against  his  wife,  without  her 
consent,  nor  a  wife  for  or  against  her  husband,  without  his  consent ; 
nor  can  either,  during  the  marriage  or  afterwards,  be,  without  the  con- 
sent of  the  other,  examined  as  to  any  communication  made  by  one  to  the 
other  during  the  marriage ;  but  this  exception  does  not  apply  to  a  civil 
action  or  proceeding  by  one  against  the  other,  nor  to  a  criminal  action 
or  proceeding  for  a  crime  committed  by  one  against  the  other" ;  the 
amendments  to  §  1881,  added  by  the  Commissioners  in  1901,  concern  the 
respective  privileges  involved. 

Penal  Code,  18 J2,  §  675  (imprisonment  suspending  or  extinguishing 
civil  rights  does  not  create  incompetency  as  witness  in  criminal  case). 

Ih.  §§  1099,  iioo  (joint  indictment  of  two  or  more;  the  Court  may 
order  discharge  of  one,  to  be  witness  for  the  prosecution,  before  the 
defence  is  gone  into,  and  must  order  the  discharge  of  one,  to  be  witness 
for  a  co-defendant,  before  close  of  evidence,  if  there  is  not  sufficient 
evidence  to  put  him  on  his  defence). 

lb.  §  1102:  "The  rules  of  evidence  in  civil  actions  are  applicable 
also  to  criminal  actions,  except  as  otherwise  provided  in  this  code." 

Ih.  §  1322:  "Except  with  the  consent  of  both,  or  in  cases  of  crim- 
inal violence  upon  one  by  the  other,  neither  husband  nor  wife  is  a  com- 
petent witness  for  or  against  the  other  in  a  criminal  action  or  proceed- 
ing to  which  one  or  both  are  parties." 

Ih.  §  1323:  If  the  accused  "offer  himself  as  a  witness,  he  may  be 
cross-examined  by  the  counsel   for  the  people  as  to  all  matters  about 


780  APPENDIX  OF  STATUTES. 

which  he  was  examined  in  chief;"  "his  neglect  or  refusal  to  be  a  wit- 
ness cannot  in  any  manner  prejudice  him  nor  be  used  against  him  on 
the  trial  or  proceeding." 


COLORADO. 

Annotated  Statutes,  1891,  §  185  (insolvent  assignments;  the  debtor's 
wife  may  be  compelled  to  testify). 

§  1 168:  "An  accessory  during  the  fact  shall  be  a  competent  witness," 
unless  otherwise  disqualified. 

§  1170:  "The  party  or  parties  injured  shall  in  all  cases  be  competent 
witnesses,  unless  he,  she,  or  they  shall  be  rendered  incompetent  by  rea- 
son of  his,  her,  or  their  infamy  or  other  legal  incompetency  other  than 
that  of  interest.  The  credibility  of  all  such  witnesses  shall  be  left  to  the 
jury  as  in  other  cases." 

§  1 171:  "Hereafter  in  all  criminal  cases  tried  in  any  Court  of  this 
State,  the  accused,  if  he  so  desire,  shall  be  sworn  as  a  witness  in  the 
case,  and  the  jury  shall  give  his  testimony  such  weight  as  they  think 
it  deserves ;  but  in  no  case  -shall  a  neglect  or  refusal  of  the  accused  to 
testify  be  taken  or  considered  any  evidence  of  his  guilt  or  innocence." 

§  1 172:     "Approvers  shall  not  be  allowed  to  give  testimony." 

§  1 173:  "The  solemn  affirmation  of  witnesses  shall  be  deemed  suffi- 
cient." 

§  2780  (on  preliminary  examination  the  accused  may  make  a  state- 
ment, under  oath  or  otherwise,  "after  all  witnesses  have  been  heard.") 

§  3382 :  A  married  woman  becoming  special  partner  in  a  limited 
firm  "shall  be  a  competent  witness  for  or  against  her  husband,  the  same 
as  though  a  femme  sole"  in  all  proceedings  arising  out  of  partnership. 

§  4785 :  "No  person  making  a  claim  against  the  estate  of  any  testator 
or  intestate  shall  be  permitted  to  prove  the  same  by  his  or  her  own 
oath,"  except  as  in  §  4782,  for  uncontested  claims. 

§4816:  "That  no  party  to  any  civil  action,  suit,  or  proceeding,  or 
person  directly  interested  in  the  event  thereof,  shall  be  allowed  to  tes- 
tify therein  of  his  own  motion,  or  in  his  own  behalf,  by  virtue  of  the 
foregoing  section  [now  §  4822]  when  any  adverse  party  sues  or  defends 
as  the  trustee  or  conservator  of  an  idiot,  lunatic,  or  distracted  person, 
or  as  the  executor  or  administrator,  heir,  legatee,  or  devisee  of  any 
deceased  person,  or  as  guardian  or  trustee  of  any  such  heir,  legatee,  or 
devisee,  unless  when  called  as  a  witness  by  such  adverse  party  so  suing 
or  defending;  and  also,  except  in  the  following  cases,  namely:  First: 
In  any  such  action,  suit,  or  proceeding,  a  party  or  interested  person  may 
testify  to  facts  occurring  after  the  death  of  such  deceased  person; 
Second:     When 'in  such  action,  suit  or  proceeding,  any  agent  of  any 


COLORADO.  781 

deceased  person  shall,  in  behalf  of  any  person  or  persons  suing  or  being 
sued,  in  either  of  the  capacities  above  named,  testify  to  any  conversa- 
tion or  transaction  between  agent  and  the  opposite  party  or  parties  in 
interest,  such  party  or  parties  in  interest  may  testify  concerning  the 
same  conversation  or  transaction;  Third:  When  in  any  such  action, 
suit,  or  proceeding,  any  such  party  suing  or  defending  as  aforesaid,  or 
any  person  having  a  direct  interest  in  the  event  of  such  action,  suit,  or 
proceeding,  shall  testify  in  behalf  of  such  party  so  suing  or  defending, 
to  any  conversion  or  transaction  with  the  opposite  party  or  parties  in 
interest,  then  such  opposite  party  in  interest  shall  also  be  permitted  to 
testify  as  to  the  same  conversation  or  transaction;  Fourth:  When  in 
any  such  action,  suit,  or  proceeding,  any  witness  not  a  party  to  the  rec- 
ord, or  not  a  party  in  interest,  or  not  an  agent  of  such  deceased  person, 
shall  in  behalf  of  any  party  to  such  action,  suit,  or  proceeding,  testify  to 
any  conversation  or  admission  by  any  adverse  party  or  parties  in  in- 
terest, occurring  before  the  death  and  in  the  absence  of  such  deceased 
person,  such  adverse  party  or  parties  in  interest  may  also  testify  to 
the  same  admission  or  conversation;  Fifth:  When  in  any  such  action, 
suit,  or  proceeding,  the  deposition  of  such  deceased  person  shall  be  read 
in  evidence  at  the  trial,  any  adverse  party  or  parties  in  interest  may 
testify  as  to  all  matters  and  things  testified  to  in  such  deposition  by  such 
deceased  person,  and  not  excluded  for  irrelevancy  or  incompetency." 

§4818:  "That  in  any  action,  suit,  or  proceeding,  by  or  against  any 
surviving  partner  or  partners,  joint  contractor  or  contractors,  no  adverse 
party  or  person  adversely  interested  in  the  event  thereof,  shall,  by  virtue 
of  section  one  of  this  act,  be  rendered  a  competent  witness  to  testify  to 
any  admission  or  conversation  by  any  deceased  partner  or  joint  con- 
tractor, unless  some  one  or  more  of  the  surviving  partners  or  joint  con- 
tractors were  also  present  at  the  time  of  such  admission  or  conversa- 
tion." 

§4819  (an  assignment  or  release  "made  for  the  purpose  of  allowing 
such  person  to  testify"  does  not  make  him  competent  under  §§  4816, 
4817). 

§4820  (the  statute  is  not  to  affect  the  law  in  regard  to  the  settle- 
ment of  estates  of  deceased  persons,  etc.,  or  to  the  acknowledgment  or 
proof  of  deeds,  or  to  the  attestation  of  instruments  required  to  be  at- 
tested). 

§  4822 :  "All  persons,  without  exception,  other  than  those  specified 
in  the  next  three  sections,  and  in  the  second,  third,  fourth,  seventh,  and 
eighth  sections  of  chapter  one  hundred  and  four  of  the  general  laws,  may 
be  witnesses.  Neither  parties  nor  other  persons  who  have  an  interest 
in  the  event  or  proceeding  shall  be  excluded ;  nor  those  who  have  been 
convicted  of  crime ;  nor  persons  on  account  of  their  opinions  on  matters 


782  APPENDIX  OF   STATUTES. 

of  religious  belief;  although  in  every  case  the  credibility  of  the  witness 
may  be  drawn  in  question,  as  now  provided  by  law,  but  the  conviction 
of  any  person  for  any  crime  may  be  shown  for  the  purpose  of  affecting 
the  credibility  of  such  witness;  and  the  fact  of  such  conviction  may  be 
proved  like  any  other  fact  not  of  record,  either  by  the  witness  himself 
(who  shall  be  compelled  to  testify  thereto),  or  by  any  other  person 
cognizant  of  such  conviction,  as  impeaching  testimony  or  by  any  other 
competent  testimony." 

§  4823:  "The  following  persons  shall  not  be  witnesses:  1.  Those 
who  are  of  unsound  mind  at  the  time  of  their  production  for  examina- 
tion. 2.  Children  under  ten  years  of  age  who  appear  incapable  of  re- 
ceiving just  impressions  of  the  facts  respecting  which  they  are  examined 
or  of  relating  them  truly." 

§  4824:  "There  are  particular  relations  in  which  it  is  the  policy  of 
the  law  to  encourage  confidence  and  to  preserve  it  inviolate;  therefore 
a  person  shall  not  be  examined  as  a  witness  in  the  following  cases: 
I.  A  husband  shall  not  be  examined  for  or  against  his  wife  without 
her  consent,  nor  a  wife  for  or  against  her  husband  without  his  consent; 
nor  shall  either  during  the  marriage  or  afterward  be,  without  the 
consent  of  the  other,  examined  as  to  any  communication  made  by  one 
to  the  other  during  marriage;  but  this  exception  does  not  apply  to  a 
civil  action  or  proceeding  by  one  against  the  other,  nor  to  a  criminal 
action  or  proceeding  for  a  crime  committed  by  one  against  the  other." 

§  4825 :  "If  a  person  offer  himself  as  a  witness,  that  is  to  be  deemed 
a  consent  to  the  examination;  also  the  offer  of  a  wife,  husband,  at- 
torney, clergyman,  physician,  or  surgeon,  as  a  witness,  shall  be  deemed 
a  consent  to  the  examination  within  the  meaning  of  the  first  four  sub- 
divisions of  the  last  section." 

St.  189s,  P-  ^^7>  §  3  (i"  a  prosecution  for  a  failure  to  support,  the 
wife  is  competent  against  the  husband  without  his  consent). 


CONNECTICUT. 

General  Statutes,  1887,  §  1094:  "In  actions  by  or  against  the  repre- 
sentatives of  deceased  persons,  the  entries,  memoranda,  and  declarations 
of  the  deceased,  relevant  to  the  matter  in  issue,  may  be  received  as 
evidence;  and  in  actions  by  or  against  the  representatives  of  deceased 
persons,  in  which  any  trustee  or  receiver  is  an  adverse  party,  the  testi- 
mony of  the  deceased,  relevant  to  the  matter  in  issue,  given  at  his  ex- 
amination, upon  the  application  of  said  trustee  or  receiver,  shall  be 
received  in  evidence." 

§  1097:     "A  wife  shall  be  a  competent  witness  against  her  husband 


I 


COLORADO;   CONNECTICUT;  GEORGIA.  783 

ill  any  action  brought  against  him  for  necessaries  furnished  her  while 
living  apart  from  him." 

§  1098:  "No  person  shall  be  disqualified  as  a  witness  in  any  action 
by  reason  of  his  interest  in  the  event  of  the  same  as  a  party  or  other- 
wise, or  of  his  disbelief  in  the  existence  of  a  Supreme  Being,  or  of 
his  conviction  of  crime;  but  such  interest  or  conviction  may  be  shown 
for  the  purpose  of  affecting  his  credit." 

§  1099:  Any  party  to  a  civil  action  may  compel  any  adverse  party  or 
"any  person  for  whose  immediate  and  adverse  benefit"  the  action  was 
begun,  etc.,  to  testify;  but  not  compel  both  discovery  and  testimony 
from  the  same  party. 

§  1623:  "Any  person  on  trial  for  crime  shall  be  a  competent  wit- 
ness, and  at  his  or  her  option  may  testify  or  refuse  to  testify,  upon 
such  trial,  and  if  such  person  has  a  husband  or  wife,  he  or  she  shall  be 
a  competent  witness,  but  may  elect  or  refuse  to  testify  for  or  against 
the  accused,  except  that  a  wife  when  she  has  received  personal  violence 
from  her  husband,  may,  upon  his  trial  therefor,  be  compelled  to  testify 
in  the  same  manner  as  any  other  witness.  The  neglect,  or  refusal,  of 
an  accused  party  to  testify  shall  not  be  commented  upon  to  the  Court  or 
jury." 

GEORGIA. 

Code  i8q5,  §  5198  (i)  :  "Communications  between  husband  and 
wife"  are  excluded. 

lb.  §  5268:  "Religious  belief  goes  only  to  the  credit." 
Ih.  §  5269:  "No  person  offered  as  a  witness  shall  be  excluded  by 
reason  of  incapacity,  for  crime  or  interest,  or  from  being  a  party,  from 
giving  evidence,  either  in  person  or  by  deposition  [in  any  court  or  pro- 
ceeding] .  .  .  ;  but  every  person  so  offered  shall  be  competent,  and 
compellable  to  give  evidence  on  behalf  of  either  or  any  of  the  parties 
to  the  said  suit,  action,  or  other  proceeding,  except  as  follows:  i.  \\'here 
any  suit  is  instituted  or  defended  by  a  person  insane  at  the  time  of  the 
trial,  or  by  an  indorsee,  assignee,  transferee,  or  by  the  personal  repre- 
sentative of  a  deceased  person,  the  opposite  party  shall  not  be  admitted 
to  testify  in  his  own  favor  against  the  insane  or  deceased  person,  as  to 
transactions  or  communications  with  such  insane  or  deceased  person. 
2.  Where  any  suit  is  instituted  or  defended  by  partners,  persons  jointly 
liable,  or  interested,  the  opposite  party  shall  not  be  admitted  to  testify  in 
his  own  favor  as  to  transactions  or  communications  solely  with  an  insane 
or  deceased  partner,  or  person  jointly  liable  or  interested.  3.  Where 
any  suit  is  instituted  or  defended  by  a  corporation,  the  opposite  party 
shall  not  be  admitted  to  testify  in  his  own  behalf  to  transactions  or 
communications  solely  with  a  deceased  or  insane  officer  or  agent  of  the 


784  APPENDIX  OF  STATUTES. 

corporation.  4.  Where  a  person  not  a  party,  but  a  person  interested  in 
the  result  of  the  suit,  is  offered  as  a  witness,  he  shall  not  be  competent 
to  testify,  if,  as  a  party  to  the  cause,  he  would  for  any  cause  be  in- 
competent. 5.  No  agent  or  attorney-at-law  of  the  surviving  or  sane 
party,  at  the  time  of  the  transaction  testified  about,  shall  be  allowed  to 
testify  in  favor  of  a  surviving  or  sane  party,  under  circumstances  where 
the  principal,  a  party  to  the  cause,  could  not  testify ;  nor  can  a  surviv- 
ing party  or  agent  testify  in  his  own  favor  or  in  favor  of  a  surviving 
or  sane  party,  as  to  transactions  or  communications  with  a  deceased 
or  insane  agent,  under  circumstances  where  such  witness  would  be  in- 
competent if  deceased  agent  had  been  principal.  6.  In  all  cases  where 
the  personal  representative  of  the  deceased  or  insane  party  has  intro- 
duced a  witness  interested  in  the  event  of  a  suit,  who  has  testified  as  to 
transactions  or  communications  on  the  part  of  the  surviving  agent  or 
party  with  a  deceased  or  insane  party  or  agent,  the  surviving  party  or 
his  agent,  may  be  examined  in  reference  to  such  facts  testified  to  by  said 
witness";  amended  by  Acts  1900,  p.  57,  Van  Epps'  Suppl.  §  6200,  by 
adding:  "whether  such  transactions  or  communications  were  had  by 
such  insane  or  deceased  person  with  the  party  testifying  or  with  any 
other  person." 

Acts  i8py,  p.  53,  Van  Epps'  Suppl.  §  6222:  "When  suit  is  insti- 
tuted against  joint  defendants,  one  of  whom  is  the  representative  of  an 
insane  or  deceased  person,  the  sane  or  living  party  defendant  shall  not 
be  admitted  to  testify  as  to  any  transaction  or  communication  with  the 
insane  or  deceased  party,  when  his  evidence  would  tend  to  relieve  or 
modify  the  liability  of  the  party  offered  as  a  witness  and  tend  to  make 
the  estate  of  said  insane  or  deceased  party  primarily  liable  for  the  debt 
or  default." 

Code  i8p5,  §  5270:  "There  shall  be  no  other  exceptions  allowed 
under  the  foregoing  paragraphs." 

lb.  §  5272:  "Nothing  contained  in  section  5269  shall  apply  to  any 
action,  suit,  or  proceeding  in  any  Court,  instituted  in  consequence  of 
adultery,  or  to  any  action  for  breach  of  promise  of  marriage." 

lb.  §  5273:  "Persons  who  have  not  the  use  of  reason,  as  idiots, 
lunatics  during  lunacy,  and  children  who  do  not  understand  the  nature 
of  an  oath,  are  incompetent  witnesses." 

lb.  §  5274 :  "Drunkenness,  which  dethrones  reason  and  memory,  in- 
capacitates during  its  continuance." 

lb.  §  5275:  "No  physical  defects  in  any  of  the  senses  incapacitates 
a  witness.    An  interpreter  may  explain  his  evidence." 

lb.  §  5276:  "The  Court  must,  by  examination,  decide  upon  the  ca- 
pacity of  one  alleged  to  be- incompetent  from  idiocy,  lunacy,  or  insanity, 
or  drunkenness,  or  childhood." 


GEORGIA;    ILLINOIS.  785 

Criminal  Code,  iSpj,  §§  loio,  loii :  "In  all  criminal  trials  the  pris- 
oner shall  have  the  right  to  make  to  the  Court  and  jury  such  statement 
in  the  case  as  he  may  deem  proper  in  his  defence.  It  shall  not  be  under 
oath,  and  shall  have  such  force  only  as  the  jury  may  think  right  to 
give  it.  They  may  believe  it  in  preference  to  the  sworn  testimony  in 
the  cause" ;  but  in  so  making  a  statement,  he  is  not  compellable  "to 
answer  any  questions  on  cross-examination,  should  he  think  proper  to 
decline  an  answer" ;  "no  person,  w  ho  in  any  criminal  proceeding  is 
charged  with  the  commission  of  any  indictable  offence,  or  any  offence 
punishable  on  summary  conviction,  is  competent  or  compellable  to  give 
•evidence  for  or  against  himself." 

lb.  §  loii  (4)  :  "Husband  and  wife  shall  not  be  competent  or  com- 
pellable to  give  evidence  in  criminal  proceeding  for  or  against  each 
other,  except  that  the  wife  shall  be  competent,  but  not  compellable,  to 
testify  against  her  husband,  upon  his  trial  for  any  criminal  offence  com- 
mitted, or  attempted  to  have  been  committed,  upon  her  person.  She  is 
also  a  competent  witness  to  testify  for  or  against  her  husband,  in  cases 
of  abandonment  of  his  child,  as  provided  for  in  §  114  of  this  Code." 

lb.  §  104  (the  wife  is  to  be  a  "competent  witness,"  when  the  husband 
is  tried  for  maltreatment  of  wife). 

lb.  §  910  (the  accused's  statement  before  a  magistrate  regulated). 


ILLINOIS. 

Revised  Statutes,  1874.  c.  17,  §  6  (in  bastardy  trials,  "the  mother 
and  defendant"  are  competent). 

lb.  c.  38,  §  35 :  When  a  witness  is  released  by  Court  order  from 
liability  to  prosecution,  and  compelled  to  testify,  "the  defendant  shall 
also  at  his  own  request  be  deemed  a  competent  witness";  but  no  infer- 
ence shall  be  drawn,  as  in  ib.  §  426. 

lb.  c.  38,  §  426:  "No  person  shall  be  disqualified  as  a  witness  in 
any  criminal  case  or  proceeding  by  reason  of  his  interest  in  the  event 
of  the  same,  as  a  party  or  otherwise,  or  by  reason  of  his  having  been 
convicted  of  any  crime,  but  such  interest  or  conviction  may  be  shown 
for  the  purpose  of  affecting  his  credibility;  provided,  however,  that  a 
defendant  in  any  criminal  case  or  proceeding  shall  only  at  his  own 
request  be  deemed  a  competent  witness,  and  his  neglect  to  testify  shall 
not  create  any  presumption  against  him,  nor  shall  the  Court  permit  any 
reference  or  comment  to  be  made  to  or  upon  such  neglect." 

Ib.  c.  38.  §"491,  St.  iSo^,  June  17:  The  wife  is  to  be  competent  in 
any  case  against  the  husband  under  the  statute  punishing  abandonment 
of  family,  "as  to  any  and  all  matters  relevant  thereto,  including  \W 
fact  of  such  marriage  and  the  parentage  of  such  children." 


786  APPENDIX  OF  STATUTES. 

St.  ipoi,  May  ii,  §  3 :  In  prosecutions  for  abandonment  of  wife 
or  child,  "such  husband  or  wife  shall  be  a  competent  witness  to  testify 
in  any  case  brought  against  the  one  or  the  other  under  this  act,  and  to 
any  and  all  matters  relevant  thereto,  including  the  facts  of  such  mar- 
riage and  the  parentage  of  such  child  or  children." 

Rev.  St.  1874,  c.  51,  §  i:  "No  person  shall  be  disqualified  as  a  wit- 
ness in  any  civil  action,  suit,  or  proceeding,  except  as  hereinafter  stated, 
by  reason  of  his  or  her  interest  in  the  event  thereof,  as  a  party  or  other- 
wise, or  by  reason  of  his  or  her  conviction  of  any  crime;  but  such 
interest  or  conviction  may  be  shown  for  the  purpose  of  affecting  the 
credibility  of  such  witness;  and  the  fact  of  such  conviction  may  be 
proven  like  any  fact  not  of  record,  either  by  the  witness  himself  (who 
shall  be  compelled  to  testify  thereto)  or  by  any  other  witness  cognizant 
of  such  conviction,  as  impeaching  testimony,  or  by  any  other  competent 
evidence." 

lb.  §  2:  "No  party  to  any  civil  action,  suit,  or  proceeding,  or  person 
directly  interested  in  the  event  thereof,  shall  be  allowed  to  testify  therein 
of  his  own  motion,  or  in  his  own  behalf,  by  virtue  of  the  foregoing 
section,  when  any  adverse  party  sues  or  defends  as  the  trustee  or  con- 
servator of  any  idiot,  habitual  drunkard,  lunatic,  or  distracted  person, 
or  as  the  executor,  administrator,  heir,  legatee,  or  devisee  of  any  de- 
ceased person,  or  as  guardian  or  trustee  of  any  such  heir,  legatee,  or 
devisee,  unless  when  called  as  a  witness  by  such  adverse  party  so 
suing  or  defending,  and  also  except  in  the  following  cases,  namely: — 
First.  In  any  such  event,  suit,  or  proceeding,  a  party  or  interested  per- 
son may  testify  to  facts  occurring  after  the  death  of  such  deceased 
person,  or  after  the  ward,  heir,  legatee,  or  devisee  shall  have  attained 
his  or  her  majority.  Second.  When,  in  such  action,  suit,  or  proceeding, 
any  agent  of  any  deceased  person  shall,  in  behalf  of  any  person  or  per- 
sons suing  or  being  sued,  in  either  of  the  capacities  above  named,  testify 
to  any  conversation  or  transaction  between  such  agent  and  the  opposite 
party  or  part  in  interest,  such  opposite  party  or  party  in  interest  may 
testify  concerning  the  same  conversation  or  transaction.  Third.  Where, 
in  any  such  action,  suit,  or  proceeding,  any  such  party  suing  or  de- 
fending, as  aforesaid,  or  any  person  having  a  direct  interest  in  the 
event  of  such  action,  suit,  or  proceeding,  shall  testify  in  behalf  of  such 
party  so  suing  or  defending,  to  any  conversation  or  transaction  with  the 
opposite  party  or  party  in  interest,  then  such  opposite  party  or  party  in 
interest  shall  also  be  permitted  to  testify  as  to  the  same  conversation  or 
transaction.  Fourth.  Where,  in  any  such  action,  suit,  or  proceeding, 
any  witness,  not  a  party  to  the  record,  or  not  a  party  in  interest,  or  not 
an  agent  of  such  deceased  person,  shall,  in  behalf  of  any  party  to  such 
action,   suit,   or   proceeding,   testify   to   any  conversation   or  admission 


ILLINOIS.  787 

by  any  adverse  party  or  party  in  interest,  occurring  before  the  death 
and  in  the  absence  of  such  deceased  person,  such  adverse  party  or 
party  in  interest  may  also  testify  as  to  the  same  admission  or  conversa- 
tion. Fifth.  Where,  in  any  such  action,  suit,  or  proceeding,  the  deposi- 
tion of  such  deceased  person  shall  be  read  in  evidence  at  the  trial,  any 
adverse  party  or  party  in  interest  may  testify  as  to  all  matters  and  things 
testified  to  in  such  deposition  by  such  deceased  person,  and  not  excluded 
tor  irrelevancy  or  incompetency." 

lb.  §  4 :  "In  any  action,  suit,  or  proceeding,  by  or  against  any  sur- 
viving partner  or  partners,  joint  contractor  or  contractors,  no  adverse 
party,  or  party  adversely  interested  in  the  event  thereof,  shall,  by  virtue 
of  section  i  of  this  Act,  be  rendered  a  competent  witness,  to  testify 
to  any  admission  or  conversation,  by  any  deceased  partner  or  joint 
contractor,  unless  some  one  or  more  of  the  surviving  partners  or  joint 
contractors  were  also  present  at  the  time  of  such  admission  or  conversa- 
tion ;  and  in  every  action,  suit,  or  proceeding,  a  party  to  the  same, 
who  has  contracted  with  an  agent  of  the  adverse  party,  the  agent  having 
since  died,  shall  not  be  a  competent  witness,  as  to  any  conversation  or 
transaction  between  himself  and  such  agent,  except  where  the  condi- 
tions are  such,  that  under  the  provisions  of  sections  2  and  3  of  this 
Act,  he  would  have  been  permitted  to  testify,  if  the  deceased  person 
had  been  a  principal  and  not  an  agent" ;  amended  by  St.  1899,  April  24, 
by  inserting  after  "such  agent,"  the  words,  "unless  such  admission  or 
conversation  with  the  said  deceased  agent  was  had  or  made  in  the  pres- 
ence of  a  surviving  agent  or  agents  of  such  adverse  party,  and  then 
only." 

lb.  §  5 :  "No  husband  or  wife  shall,  by  virtue  of  section  i  of  this 
Act,  be  rendered  competent  to  testify  for  or  against  each  other  as  to 
any  transaction  or  conversation,  occurring  during  the  marriage,  whether 
called  as  a  witness  during  the  existence  of  the  marriage,  or  after  its 
dissolution,  except  in  cases  where  the  wife  would,  if  unmarried,  be 
plaintiff  or  defendant,  or  where  the  cause  of  action  grows  out  of  a  per- 
sonal wrong  or  injury  done  by  one  to  the  other  or  grows  out  of  the 
neglect  of  the  husband  to  furnish  the  wife  with  a  suitable  support;  and 
except  in  cases  where  the  litigation  shall  be  concerning  the  separate 
property  of  the  wife,  and  suits  for  divorce;  and  except  also  in  actions 
upon  policies  of  insurance  of  property,  so  far  as  relates  to  the  amount 
and  value  of  the  property  alleged  to  be  injured  or  destroyed,  or  in  ac- 
tions against  carriers,  so  far  as  relates  to  the  loss  of  property  and  the 
amount  and  value  thereof,  or  in  all  matters  of  business  transactions 
where  the  transaction  was  had  and  conducted  by  such  married  woman 
as  the  agent  of  her  husband,  in  all  of  which  cases  the  husband  and  wife 
may  testify  for  or  against  each  other,  in  the  same  manner  as  other  parties 


788  APPENDIX  OP  STATUTES. 

may,  under  the  provisions  of  this  act.  Provided,  that  nothing  in  this 
section  contained  shall  be  construed  to  authorize  or  permit  any  such 
husband  or  wife  to  testify  to  any  admissions  or  conversations  of  the 
other,  whether  made  by  him  to  her  or  by  her  to  him,  or  by  either  to  third 
persons,  except  in  suits  or  causes  between  such  husband  and  wife." 

lb.  §  6  (quoted  ante,  No.  388 

lb.  §  7:  "In  any  civil  action,  suit,  or  proceeding,  no  person  who 
would,  if  a  party  thereto,  be  incompetent  to  testify  therein,  under  the 
provisions  of  sections  2  or  3,  shall  become  competent  by  reason  of  any 
assignment  or  release  of  his  claim,  made  for  the  purpose  of  allowing 
such  person  to  testify." 

lb.  §  8  (nothing  in  this  Act  is  to  affect  the  law  as  to  the  settlement 
of  the  estates  of  deceased  persons,  incapables,  etc.,  or  the  proof  of  con- 
veyances for  record,  or  the  attestation  of  instruments  required  to  be 
.attested) . 


IOWA. 

Constitution,  1857,  Art.  I,  §  4:  "Any  party  to  any  judicial  proceed- 
ing shall  have  the  right  to  use  as  a  witness,  or  take  the  testimony  of, 
any  other  person,  not  disqualified  on  account  of  interest,  who  may  be 
cognizant  of  any  fact  material  to  the  case;  and  parties  to  suits  may 
be  witnesses,  as  provided  by  law." 

Code,  i8py,  §  4601 :  "Every  human  being  of  sufficient  capacity  to 
understand  the  obligation  of  an  oath  is  a  competent  witness  in  all  cases, 
both  civil  and  criminal,  except  as  herein  otherwise  declared." 

lb.  §  4602:  "Facts  which  have  heretofore  caused  the  exclusion  of 
testimony  may  still  be  shown  for  the  purpose  of  lessening  its  credibility." 

lb.  §  4603 :  "No  person  offered  as  a  witness  in  any  action  or  pro- 
ceeding in  any  Court,  or  before  any  officer  acting  judicially,  shall  be 
excluded  by  reason  of  his  interest  in  the  event  of  the  action  or  proceed- 
ing, or  because  he  is  a  party  thereto,  except  as  provided  in  this  chapter." 

lb.  §  4604:  "No  party  to  any  action  or  proceeding,  nor  any  person 
interested  in  the  event  thereof,  nor  any  person  from,  through,  or  under 
whom  any  such  party  or  interested  person  derives  any  interest  or  title 
by  assignment  or  otherwise,  and  no  husband  or  wife  of  any  said  party 
or  person,  shall  be  examined  as  a  witness  in  regard  to  any  personal 
transaction  or  communication  between  such  witness  and  a  person  at  the 
commencement  of  such  examination,  deceased,  insane,  or  lunatic ;  against 
the  executor,  administrator,  heir-at-law,  next  of  kin,  assignee,  legatee, 
devisee,  or  survivor  of  such  deceased  person,  or  the  assignee  or  guardian 
of  such  insane  person  or  lunatic.  But  this  prohibition  shall  not  extend 
to  any  transaction  or  communication  as  to  which  any  such  executor, 


IOWA;    MASSACHUSETTS.  789 

administrator,  heir-at-law,  next  of  kin,  assignee,  legatee,  devisee,  sur- 
vivor, or  guardian  shall  be  examined  in  his  ovi^n  behalf,  or  as  to  which 
the  testimony  of  such  deceased  or  insane  person  or  lunatic  shall  be 
given  in  evidence." 

lb.  §  4606:  "Neither  the  husband  nor  wife  shall  in  any  case  be  a 
witness  against  the  other,  except  in  a  criminal  prosecution  for  a  crime 
committed  one  against  the  other,  or  in  a  civil  action  or  proceeding  one 
against  the  other,  or  in  a  civil  action  by  one  against  a  third  party  for 
alienating  the  affections  of  the  other;  but  they  may  in  all  civil  and 
criminal  cases  be  witnesses  for  each  other" ;  amended  by  St.  iSqS,  2yth 
Gen.  Ass.,  c.  108,  §  i,  by  inserting  after  "affections  of  the  other,"  the 
words  "or  in  any  civil  action  brought  by  a  judgment  creditor  against 
either  the  husband  or  the  wife,  to  set  aside  a  conveyance  of  property 
from  one  to  the  other  on  the  ground  of  want  of  consideration  or  fraud, 
and  to  subject  the  same  to  the  payment  of  his  judgment." 

lb.  §  4607:  "Neither  husband  nor  wife  can  be  examined  in  any  case 
as  to  any  communication  made  to  the  one  by  the  other  while  married, 
nor  shall  they,  after  the  marriage  relation  ceases,  be  permitted  to  reveal 
in  testimony  any  such  communication  made  while  the  marriage  sub- 
sisted." 

lb.  §  5484:  "Defendants  in  all  criminal  proceedings  shall  be  com- 
petent witnesses  in  their  own  behalf,  but  cannot  be  called  as  witnesses 
by  the  State;  and  should  a  defendant  not  elect  to  become  a  witness, 
this  fact  shall  not  leave  any  weight  against  him  on  the  trial,  nor  shall 
the  attorney  or  attorneys  for  the  State,  during  the  trial,  refer  to  the 
fact  that  the  defendant  did  not  testify  in  his  own  behalf;  and  should 
they  do  so,  such  attorney  or  attorneys  will  be  guilty  of  a  misdemeanor, 
and  defendant  shall  for  that  cause  alone  be  entitled  to  a  new  trial." 

lb.  §  5485:  A  defendant  taking  the  stand  "shall  be  subject  to  cross- 
examination  as  an  ordinary  witness,  but  the  State  shall  be  strictly  con- 
fined therein  to  the  matters  testified  to  in  the  examination  in  chief." 


MASSACHUSETTS. 
Revised  Laws,  1902,  c.  175,  §  20:  "No  person  of  sufficient  under- 
standing, whether  a  party  or  otherwise,  shall  be  excluded  from  giving 
evidence  in  any  proceeding,  civil  or  criminal,  in  court,  or  before  a 
person  having  authority  to  receive  evidence,  except  in  the  following 
cases:  First,  neither  husband  nor  wife  shall  be  allowed  to  testify  as 
to  private  conversations  with  each  other ;  Second,  neither  husband  nor 
wife  shall  be  compelled  to  be  a  witness  on  any  trial  upon  an  indict- 
ment, complaint,  or  other  criminal  proceeding,  against  the  other ;  Third, 
in  the  trial  of  all  indictments,  complaints,  and  other  proceedings  against 


790  APPENDIX  OF   STATUTES. 

persons  charged  with  the  commission  of  crimes  or  offences,  a  person 
so  charged  shall  at  his  own  request,  but  not  otherwise,  be  deemed  a 
competent  witness;  and  his  neglect  or  refusal  to  testify  shall  not  create 
any  presumption  against  him." 

lb.  §  21 :     "The  conviction  of  a  witness  of  crime  may  be  shown  to 
affect  his  credibility." 


MICHIGAN. 

Compiled  Laws,  1897,  c.  282,  §  99:  "No  person  shall  be  excluded 
from  giving  evidence  in  any  matter,  civil  or  criminal,  by  reason  of 
crime,  or  for  any  interest  of  such  person  in  the  matter,  suit,  or  pro- 
ceeding in  which  such  testimony  may  be  offered,  or  by  reason  of  mari- 
tal or  other  relationship  to  any  party  thereto;  but  such  interest,  rela- 
tionship, or  conviction  of  crime  may  be  shown  for  the  purpose  of  draw- 
ing in  question  the  credibility  of  such  witness,  except  as  is  hereafter 
provided." 

lb.  §  100:  "On  the  trial  of  any  issue  joined,  or  in  any  matter,  suit, 
or  proceeding,  in  any  court,  or  before  any  officer  or  person  having, 
by  law  or  by  consent  of  parties,  authority  to  hear,  receive,  and  examine 
evidence,  the  parties  to  any  such  suit  or  proceeding  named  in  the  record, 
and  persons  for  whose  benefit  such  suit  is  prosecuted  or  defended,  may 
be  witnesses  therein,  in  their  own  behalf  or  otherwise,  in  the  same 
manner  as  otherwise,  except  as  hereinafter  otherwise  provided;  and 
the  deposition  of  any  such  party  or  person  may  be  taken  and  used  in 
evidence  under  the  rules  and  statutes  governing  depositions,  and  any 
such  party  or  person  may  be  proceeded  against,  and  compelled  to  attend 
and  testify,  as  provided  by  law  for  other  witnesses.  No  person  shall 
be  disqualified  in  any  criminal  case  or  proceeding,  by  reason  of  his  inter- 
est in  the  event  of  the  same  as  a  party  or  otherwise,  or  by  reason  of 
his  having  been  convicted  of  any  crime;  but  such  interest  or  convic- 
tion may  be  shown  for  the  purpose  of  affecting  his  credibility;  pro- 
vided, however,  that  a  defendant  in  any  criminal  case  or  proceeding 
shall  only  at  his  own  request  be  deemed  a  competent  witness,  and  his 
neglect  to  testify  shall  not  raise  any  presumption  against  him,  nor  shall 
the  Court  permit  any  reference  or  comment  be  made  to  or  upon  such 
neglect." 

lb.  §  loi :  "That  when  a  suit  or  proceeding  is  prosecuted  or  de- 
fended by  the  heirs,  assignees,  devisees,  legatees,  or  personal  repre- 
sentatives of  a  deceased  person,  the  opposite  party,  if  examined  as  a 
witness  on  his  own  behalf,  shall  not  be  admitted  to  testify  at  all  to 
matters  which,  if  true,  must  have  been  equally  within  the  knowledge 
of  such  deceased  person ;  and  when  any  suit  or  proceeding  is  prose- 
cuted or  defended  by  any  surviving  partner  or  partners,  the  opposite 
party,  if  examined  as  a  witness  in  his  own  behalf,  shall  not  be  ad- 


MICHIGAN.  791 

mitted  to  testify  at  all  in  relation  to  matters  which,  if  true,  must  have 
been  equally  within  the  knowledge  of  the  deceased  partner  and  not 
within  the  knowledge  of  any  one  of  the  surviving  partners.  And 
when  any  suit  or  proceeding  is  prosecuted  or  defended  by  any  cor- 
poration, the. opposite  party,  if  examined  as  a  witness  in  his  own  be- 
half, shall  not  be  admitted  to  testify  at  all  to  matters  which,  if  true, 
must  have  been  equally  within  the  knowledge  of  a  deceased  officer  or 
agent  of  the  corporation  and  not  v  ithin  the  knowledge  of  any  sur- 
viving officer  or  agent  ot  the  corporation,  nor  when  any  suit  or  pro- 
ceeding is  prosecuted  or  defended  by  the  heirs,  assigns,  devisees,  lega- 
tees, or  personal  representatives  of  a  deceased  person  against  a  corpora- 
tion, shall  any  person  who  is  or  has  been  an  officer  or  agent  of  any 
such  corporation  be  allowed  to  testify  at  all  in  relation  to  matters 
which,  if  true,  must  have  been  equally  within  the  knowledge  of  such 
deceased  person;  provided,  that  whenever  the  words,  'the  opposite 
party,'  occur  in  this  section,  it  shall  be  deemed  to  include  the  assignors 
or  assignees  of  the  claim  or  any  part  thereof  in  controversy" ;  amended 
by  St.  1901,  No.  239,  by  inserting  after  "surviving  partners,"  the  fol- 
lowing: "No  person  who  shall  have  acted  as  an  agent  in  the  making 
or  continuing  of  a  contract  with  any  person  who  may  have  died  shall 
be  a  competent  witness,  in  any  suit  involving  such  contract,  as  to 
matters  occurring  prior  to  the  death  of  such  decedent,  on  behalf  of  the 
principal  to  such  contract  against  the  legal  representatives  or  heirs  of 
such  decedent,  unless  he  shall  be  called  by  such  iicirs  or  legal  repre- 
sentatives." 

lb.  §  102:  "A  husband  shall  not  be  examined  as  a  witness,  for  or 
against  his  wife,  without  her  consent ;  nor  a  wife,  for  or  against  her 
husband,  without  his  consent,  except  in  cases  where  the  cause  of  action 
grows  out  of  a  personal  wrong  or  injury  done  by  one  to  the  other,  or 
grows  out  of  the  refusal  or  neglect  to  furnish  the  wife  or  children 
with  suitable  support  within  the  meaning  of  Act  No.  136  of  the  Ses- 
sion Laws  of  1883,  and  except  in  cases  where  the  husband  or  wife  shall 
be  a  party  to  the  record  in  a  suit,  action,  or  proceeding  where  the  title 
to  the  separate  property  of  the  husband  or  wife  so  called  or  offejed 
as  a  witness,  or  where  the  title  to  property  derived  from,  through,  or 
under  the  husband  or  wife  so  called  or  offered  as  a  witness,  shall  be 
the  subject-matter  in  controversy  or  litigation  in  such  suit,  action,  or 
proceeding,  in  opposition  to  the  claims  or  interest  of  the  other  of  said 
married  persons  who  is  a  party  to  the  record  in  such  suit,  action,  or 
proceeding;  and  in  all  such  cases,  such  husband  or  wife  who  makes 
such  claim  of  title,  or  under  or  from  whom  such  title  is  derived,  shall 
be  as  competent  to  testify  in  relation  to  said  separate  property  and 
the  title  thereto,  without  the  consent  of  said  husband  or  wife,  who  is 
a  party  to  the  record  in  such  suit,  action,  or  proceeding,  as  though  such 
marriage  relation  did  not  exist ;  nor  shall  either,  during  the  marriage 
or  afterwards,  without    the   consent   of  both,   be   examined   as   to   any 


792  APPENDIX   OF   STATUTES. 

communication  made  by  one  to  the  other  during  the  marriage;  but  in 
any  action  or  proceeding  instituted  by  the  husband  or  wife  in  conse- 
quence of  adultery  the  husband  and  wife  shall  not  be  competent  to 
testify." 

Acts  i88y,  No.  82:  "Whenever  a  child  under  the  age  of  ten  years 
is  produced  as  a  witness  the  Court  shall  by  an  examination,  made  by 
itself,  publicly,  or  separate  and  apart,  ascertain  to  its  own  satisfaction 
whether  such  child  has  sufficient  intelligence  and  sense  of  obligation 
to  tell  the  truth  to  be  safely  admitted  to  testify;  and  in  such  case  such 
testimony  may  be  given  on  a  promise  to  tell  the  truth  instead  of  upon 
oath  or  statutory  affirmation,  and  shall  be  given  such  credit  as  to  the 
Court  or  jury,  if  there  be  a  jury,  it  may  appear  ta  deserve." 

Acts  iSqy,  No.  212:  "A  husband  may  testify  for  or  against  his 
wife  without  her  consent,  and  a  wife  may  testify  for  or  against  her  hus- 
band without  his  consent,  in  all  criminal  prosecutions  for  bigamy ; 
provided,  however,  that  nothing  herein  contained  shall  be  so  construed 
as  to  permit  a  husband  or  wife  to  testify  against  the  other  without 
the  consent  of  both  concerning  any  communications  made  by  one  to 
the  other  during  the  marriage." 

Compiled  Laws,  §  8652,  Howell's  ed. :  In  divorce  proceedings,  either 
party  may  elect  to  testify,  but  "such  testimony  shall  not  be  received 
in  support  or  in  defence  of  a  charge  of  adultery." 


MINNESOTA. 

General  Statutes,  1894,  §§  642,  1191  (inhabitants  in  a  city  or 
county,   not  to  be  disqualified  as  such). 

§  2007  (Indians  to  be  competent  in  prosecution  for  unlawful  sale, 
etc.,   of   liquor   to   Indian). 

§  2561  (in  actions  by  husband  against  savings  bank  for  wife's 
money,  wife  may  be  examined  as  if  unmarried). 

§  5658:  "All  persons,  except  as  hereinafter  provided,  having  the 
power  and  faculty  to  perceive  and  make  known  their  perceptions  to 
others,  may  be  witnesses;  neither  parties  nor  other  persons  who 
have  an  interest  in  the  event  of  an  action  are  excluded,  nor  those 
who  have  been  convicted  of  crime,  nor  persons  on  account  of  their 
religious  opinions  or  belief;  although  in  every  case  the  credibility 
of  the  witnesses  may  be  drawn  in  question.  And  on  the  trial  of  all 
indictments,  complaints,  and  other  proceedings  against  persons  charged 
with  the  commission  of  crimes  or  offences,  the  person  so  charged  shall 
at  his  request,  but  not  otherwise,  be  deemed  a  competent  witness; 
nor  shall  the  neglect  or  refusal  to  testify  create  any  presumption 
against  the  defendant,  nor  shall  such  neglect  be  alluded  to  or  com- 
mented upon  by  the  prosecuting  attorney  or  by  the  Court." 

§  5659:     "A  party  to  the  record  of  any  civil  action  or  proceeding, 


MINNESOTA.  793 

or  a  person  for  whose  immediate  benefit  such  action  or  proceeding  is 
prosecuted  or  defended,  or  the  directors,  officers,  superintendent,  or 
managing  agents  of  any  corporation  which  is  a  party  to  the  record 
in  such  action  or  proceeding,  may  be  examined  upon  the  trial  thereof 
as  if  under  cross-examination  at  the  instance  of  the  adverse  party  or 
parties  or  any  of  them,  and  for  that  purpose  may  be  compelled  in 
the  same  manner  and  subject  to  the  same  rules  for  examination  as  any 
other  witness  to  testify,  but  the  party  calling  for  such  examination 
shall  not  be  concluded  thereby,  but  may  rebut  it  by  counter-testimony." 

§  5660:  "It  shall  not  be  competent  for  any  party  to  an  action, 
or  interested  in  the  even  thereof,  to  give  evidence  therein  of  and  con- 
cerning any  conversation  with  or  admission  of  a  deceased  or  insane 
party  or  person,  relative  to  any  matter  at  issue  between  the  parties" ; 
amended  by  St.  1895,  c.  2^,  by  adding:  "provided  that  where  the 
testimony  of  the  party  or  person  since  deceased  or  insane  shall  have 
been  taken,  prior  to  death  or  disability,  either  in  form  of  a  deposition 
or  by  court  stenographer  in  court,  and  can  be  had  and  read  as  the 
testimony  of  such  witness,  wherein  such  party  or  person  shall  have 
testified  concerning  any  conversation  with  the  opposite  party  or  person 
or  concerning  admissions  made  to  such  party,  upon  a  trial  of  the 
issues  after  the  death  or  disability  of  such  party  or  person  as  contem- 
plated in  this  section,  the  opposite  party  may  testify  fully  in  reference 
to  conversations  and  admissions  to  which  the  aforesaid  deposition  or 
evidence   shall    relate." 

§  5661 :  "The  following  persons  are  not  competent  to  testify  in 
any  action  or  proceeding:  First,  those  who  are  of  nrsound  mind  or 
intoxicated  at  the  time  of  their  production  for  examination ;  Second, 
children  under  ten  years  of  age,  who  appear  incapable  of  receiving 
just  impressions  of  the  facts  respecting  which  they  are  examined  or 
of   relating   them   truly." 

§  5662 :  "There  are  particular  relations  in  which  it  is  the  policy 
of  the  law  to  encourage  confidence,  and  preserve  it  inviolate ;  there- 
fore a  person  cannot  be  examined  as  a  witness  in  the  following  cases: 
First.  A  husband  cannot  be  examined  for  or  against  his  wife  with- 
out her  consent ;  nor  a  wife  for  or  against  her  husband  without  his 
consent;  nor  can  either,  during  the  marriage  or  afterward,  be.  with- 
out the  consent  of  the  other,  examined  as  to  any  communication  made 
by  one  to  the  other  during  the  marriage;  but  this  exception  does  not 
apply  to  a  civil  action  or  proceeding  by  one  against  the  other,  nor 
to  a  criminal  acticui  or  proceeding  for  a  crime  committed  by  one 
against  the  other,  nor  to  proceedings  supplementary  to  execution" ; 
amended  by  St.  1903,  c.  227,  omitting  the  last  clause,  and  substituting 
"nor  to  an  action  or  proceeding  for  abandonment  and  neglect  of  the 
wife   or   children   by   the   husband." 

§  6841 :  "A  person  heretofore  or  hereafter  convicted  of  any  crime 
is,   notwithstanding,   a   competent  witness   in   any   case  or  proceeding, 


794  APPENDIX  OF   STATUTES. 

civil  or  criminal,  but  the  conviction  may  be  proved  for  the  purpose 
of  affecting  the  vi^eight  of  his  testimony,  either  by  the  record  or  by 
his  cross-examination  upon  which  he  must  answer  any  proper  ques- 
ton  relevant  to  that  inquiry ;  and  the  party  cross-examining  is  not 
concluded  by  the  answer  to  such  question." 

§  2216:  "Whenever  in  any  action  in  any  court  the  defendant 
shall  plead  or  answer  the  defence  of  usury,  either  party  to  the  action 
may  be  a  witness  on  his  own  behalf  on  the  trial,  except  in  actions 
in  which  the  opposite  party  sues  or  defends  as  administrator  or  per- 
sonal representative  of  a  deceased  person;  except,  also,  actions  in 
which  the  opposite  party  claims  as  assignee  and  the  original  assignor 
is  deceased." 

§  7324  (a  co-indictee  may  be  discharged  by  the  Court,  to  be  a 
witness  for  the  State,  at  any  time  before  defendant  has  gone  into  his 
defence). 

§  7325  (a  co-indictee  must  be  discharged,  before  the  evidence  is 
closed,  to  be  a  witness  for  the  co-defendant,  if  the  Court  is  of  opinion 
that  there  is  not  sufficient  evidence  to  put  him  on  his  defence). 


MISSOURI. 

Revised  Statutes,  1899,  §  2638:  The  accused's  failure  to  testify 
"shall  not  be  construed  to  affect  the  innocence  or  guilt  of  the  accused, 
nor  shall  the  same  raise  any  presumption  of  guilt,  nor  be  referred  to 
by  any  attorney  in  the  case,  nor  be  considered  by  the  Court  or  jury 
before  whom  the  trial  takes  place." 

§  2635 :  "No  person  shall  be  rendered  incompetent  to  testify  in 
criminal  causes  by  reason  of  his  being  the  person  injured  or  defrauded, 
or  intended  to  be  injured  or  defrauded,  or  that  would  be  entitled  to 
satisfaction  for  the  injury,  or  is  liable  to  pay  the  costs  of  the  prose- 
cution." 

§  2636:  "When  two  or  more  persons  shall  be  jointly  indicted  or 
prosecuted,  the  Court  may,  at  any  time  before  the  defendants  have 
gone  into  their  defence,  direct  any  defendant  to  be  discharged,  that 
he  may  be  a  witness  for  the  State.  A  defendant  shall  also,  when 
there  is  not  sufficient  evidence  to  put  him  on  his  defence,  at  any  time 
before  the  evidence  is  closed,  be  discharged  by  the  Court  for  the  pur- 
pose of  giving  his  testimony  for  a  co-defendant." 

§  2637 :  "No  person  shall  be  incompetent  to  testify  as  a  witness 
in  any  criminal  cause  or  prosecution  by  reason  of  being  the  person 
on  trial  or  examination,  or  by  reason  of  being  the  husband  or  wife 
of  the  accused ;  but  any  such  facts  may  be  shown  for  the  purpose  of 
affecting  the  credibility  of  such  witness ;  provided  that  no  person  on 
trial  or  examination,  nor  wife  or  husband  of  such  person,  shall  be 
required  to  testify,  but  any  such  person  may,  at  the  option  of  the  de- 


MISSOURI.  795 

fendant,  testify  in  his  behalf,  or  on  behalf  of  a  co-defendant,  and  shall 
be  liable  to  cross-examination,  as  to  any  matter  referred  to  in  his 
examination  in  chief,  and  may  be  contradicted  and  impeached  as  any 
other  witness  in  the  case ;  provided  that  in  no  case  shall  husband  or 
wife,  when  testifying  under  the  provisions  of  this  section  for  a  de- 
fendant, be  permitted  to  disclose  confidential  communications  had  or 
made  between  them  in  the  relation  of  such  husband  and  wife." 

§  4652:  "No  person  shall  be  disqualified  as  a  witness  in  any  civil 
suit  or  proceeding  at  law  or  in  equity,  by  reason  of  his  interest  in 
the  event  of  the  same  as  a  party  or  otherwise,  but  such  interest  may 
be  shown  for  the  purpose  of  affecting  his  credibility;  provided  that 
in  actions  where  one  of  the  original  parties  to  the  contract  or  cause 
of  action  in  issue  and  on  trial  is  dead,  or  is  shown  to  the  Court  to 
be  insane,  the  other  party  to  such  contract  or  cause  of  action  shall 
not  be  admitted  to  testify  either  in  his  own  favor  or  in  favor  of  any 
party  to  the  action  claiming  under  him,  and  no  party  to  such  suit  or 
proceeding  whose  right  of  action  or  defence  is  derived  to  him  from 
one  who  is,  or  if  living  would  be,  subject  to  the  foregoing  disqualifi- 
cation, shall  be  admitted  to  testify  in  his  own  favor,  except  as  in  this 
section  is  provided ;  and  where  an  executor  or  administrator  is  a 
party,  the  other  party  shall  not  be  admitted  to  testify  in  his  own 
favor,  unless  the  contract  in  issue  was  originally  made  with  a  person 
who  is  living  and  competent  to  testify,  except  as  to  such  acts  and 
contracts  as  have  been  done  or  made  since  the  probate  of  the  will  or 
the  appointment  of  the  administrator;  provided,  further,  that  in  ac- 
tions for  the  recovery  of  any  sum  or  balance  due  on  account,  and 
when  the  matter  at  issue  and  on  trial  is  proper  matter  of  book  account, 
the  party  living  may  be  a  witness  in  his  own  favor,  so  far  as  to  prove 
in  whose  handwriting  his  charges  are,  and  when  made,  and  no 
farther." 

§  4654:  "Any  party  to  any  civil  action  or  proceeding  may  compel 
any  adverse  party,  or  any  person  for  whose  immediate  and  adverse 
benefit  such  action  or  proceeding  is  instituted,  prosecuted  or  defended, 
to  testify  as  a  witness  in  his  behalf,  in  the  same  manner  and  subject 
to  the  same  rules  as  other  witnesses;  provided  that  the  party  so 
called  may  be  examined  by  the  opposite  party,  under  the  rules  ap- 
plicable to  the  cross-examination  of  witnesses." 

§  4655  (the  foregoing  sections  not  to  afifect  the  law  of  attestation 
of  instruments  required  to  be  attested). 

§  4656:  "No  married  woman  shall  be  disqualified  as  a  witness  in 
any  civil  suit  or  proceeding  prosecuted  in  the  name  of  or  against  her 
husband,  whether  joined  or  not  with  her  husband  as  a  party,  in  the 
following  cases,  to  wit:  First,  in  actions  upon  policies  of  insurance 
of  property,  so  far  as  relates  to  the  amount  and  value  of  the  prop- 
erty alleged  to  be  injured  or  destroyed;  second,  in  actions  against 
carriers,  so  far  as  relates  to  the  loss  of  the  property  and  the  amount 


796  APPENDIX  OF  STATUTES. 

and  value  thereof;  third,  in  all  matters  of  business  transactions  when 
the  transaction  was  had  and  conducted  by  such  married  woman  as 
the  agent  of  her  husband;  and  no  married  man  shall  be  disqualified 
in  any  such  civil  suit  or  proceeding  prosecuted  in  the  name  of  or 
against  his  wife,  whether  he  be  joined  with  her  or  not  as  a  party, 
when  such  suit  or  proceeding  is  based  upon,  grows  out  of,  or  is  con- 
nected with  any  matter  of  business  or  business  transaction  where  the 
transaction  or  business  was  had  with  or  was  conducted  by  such  mar- 
ried man  as  the  agent  of  his  wife;  provided  that  nothing  in  this 
section  shall  be  construed  to  authorize  or  permit  any  married  woman, 
while  the  relation  exists  or  subsequently,  to  testify  to  any  admission 
or  conversation  of  her  husband,  whether  made  to  herself  or  to  third 
parties  " 

§  4659:  "The  following  persons  shall  be  incompetent  to  testify: 
First,  a  person  of  unsound  mind  at  the  time  of  his  production  for 
examination ;  second,  a  child  under  ten  years  of  age,  who  appears 
incapable  of  receiving  just  impressions  of  the  facts  respecting  which 
they  are  examined,  or  of  relating  them  truly." 

§  4680:  "Any  person  who  has  been  convicted  of  a  crime  is  not- 
withstanding a  competent  witness ;  but  the  conviction  may  be  proved 
to  affect  his  credibility,  either  by  the  record  or  by  his  own  cross- 
examination,  upon  which  he  must  answer  any  question  relevant  to  that 
inquiry,  and  the  party  cross-examining  shall  not  be  concluded  by  his 
answer." 


NEW  YORK. 

Constitutioti,  1895,  Art.  XIII,  §  4:  "Any  person  charged  with 
receiving  a  bribe,  or  with  offering  or  promising  a  bribe,  shall  be  per- 
mitted to  testify  in  his  own  behalf  in  any  civil  or  criminal  prosecu- 
tion therefor." 

Code  of  Civil  Procedure,  1877,  §  828:  "Except  as  otherwise  speci- 
ally prescribed  in  this  title,  a  person  shall  not  be  excluded  or  ex- 
cused from  being  a  witness,  by  reason  of  his  or  her  interest  in  the 
event  of  an  action  or  special  proceeding;  or  because  he  or  she  is  a 
party  thereto;  or  the  husband  or  wife  of  a  party  thereto,  or  of  a 
person  in  whose  behalf  an  action  or  special  proceeding  is  brought,  op- 
posed, prosecuted,  or  defended." 

lb.  §  829 :  "Upon  the  trial  of  an  action,  or  the  hearing  upon  the 
merits  of  a  special  proceeding,  a  party  or  a  person  interested  in  the 
event,  or  a  person  from,  through,  or  under  whom  such  a  party  or 
interested  person  derives  his  interest  or  title  by  assignment  or  other- 
wise, shall  not  be  examined  as  a  witness  in  his  own  behalf  or  in- 
terest, or   in   behalf  of  the   party  succeeding  to   his   title   or   interest, 


NEW    YORK.  797 

against  the  executor,  administrator,  or  survivor  of  a  deceased  person, 
or  the  committee  of  a  lunatic,  or  a  person  deriving  his  title  or  in- 
terest from,  through,  or  under  a  deceased  person  or  lunatic,  by  assign- 
ment or  otherwise,  concerning  a  personal  transaction  or  communica- 
tion between  the  witness  and  the  deceased  person  or  lunatic,  except 
where  the  executor,  administrator,  survivor,  committee,  or  person  so 
deriving  title  or  interest  is  examined  in  his  own  behalf,  or  the  tes- 
timony of  the  lunatic  or  deceased  person  is  given  in  evidence  con- 
cerning the  same  transaction  or  communication.  A  person  shall  not 
be  deemed  interested  for  the  purposes  of  this  section  by  reason  of 
being  a  stockholder  or  officer  of  any  barjcing  corporation  which  is  a 
party  to  the  proceeding  or  interested  in  the  result  thereof." 

lb.  §  831 :  "A  husband  or  wife  is  not  competent  to  testify  against 
the  other,  upon  the  trial  of  an  action,  or  the  hearing  upon  the  merits 
of  a  special  proceeding,  founded  upon  an  allegation  of  adultery,  ex- 
cept to  prove  the  marriage  or  disprove  the  allegation  of  adultery.  A 
husband  or  wife  shall  not  be  compelled,  or,  without  the  consent  of 
the  other  if  living,  allowed  to  disclose  a  confidential  communication 
made  by  one  to  the  other  during  marriage.  In  an  action  for  criminal 
conversation,  the  plaintiff's  wife  is  not  a  competent  witness  for  the 
plaintiff,  but  she  is  a  competent  witness  for  the  defendant,  as  to  any 
matter  in  controversy;  except  that  she  cannot,  without  the  plaintiff's 
consent,  disclose  any  confidential  communication  had  or  made  be- 
tween herself  and  the  plaintiff." 

lb.  §  832:  "A  person,  who  has  been  convicted  of  a  crime  or  mis- 
demeanor, is.  notwithstanding,  a  competent  witness  in  a  civil  or  crim- 
inal action  or  special  proceeding;  but  the  conviction  may  be  proved 
for  the  purpose  of  affecting  the  weight  of  his  testimony,  either  by 
the  record  or  by  his  cross-examination,  upon  which  he  must  answer 
any  question  relevant  to  that  inquiry;  and  the  party  cross-examining 
him  is  not  included  by  that  inquiry." 

lb.  §  850:  "The  Court  or  officer  may  examine  an  infant,  or  a 
person  apparently  of  weak  intellect,  produced  before  it  or  him  as  a 
witness,  to  ascertain  his  capacity  and  the  extent  of  his  knowledge." 

Penal  Code,  1881,  §  714  (substantially  the  same  as  §  832,  C.  C.  P.). 

lb.  §  715:  "The  husband  or  wife  of  a  person  indicted  or  accused 
of  a  crime  is  in  all  cases  a  competent  witness,  on  the  examination  or 
trial  of  such  person;  but  neither  husband  nor  wife  can  be  compelled 
to  disclose  a  confidential  communication,  made  by  one  to  the  other 
during  marriage." 

Code  of  Criminal  Procedure,  1881,  §  10:  "No  person  can  be  com- 
pelled in  a  criminal  action  to  be  a  witness  against  himself." 

lb.  §  392  (in  criminal  cases,  the  testimony  of  a  child  apparently 
under  12  not  understanding  an  oath  may  be  received  if  it  is  "of  suf- 
ficient intelligence." 

^^-  §  393-     "The  defendant  in  all   [criminal]   cases  may  testify  as 


798  APPENDIX  OF   STATUTES. 

a  witness  in  his  own  behalf,  but  his  neglect  or  refusal  to  testify  does 
not  create  any  presumption  against  him." 

Laws  i8j6,  c.  182,  §  i :  "All  persons  jointly  indicted  shall,  upon 
the  trial  of  either,  be  competent  witnesses  for  each  other  the  same  as 
if  not  included  in  the  indictment." 

Lau's  i8q2,  c.  689,  §  115  (a  wife  may  testify  in  an  action  by  a  hus- 
band against  a  savings  bank  to  recover  money  deposited  by  the  wife 
as  hers). 


OHIO. 

Annotated  Revised  Statutes,  1898,  §  5240:  "All  persons  are  com- 
petent witnesses  except  those  of  unsound  mind,  and  children  under 
ten  years  of  age  who  appear  incapable  of  receiving  just  impressions 
of  the  facts  and  transactions  respecting  which  they  are  examined,  or 
of  relating  them  truly." 

§  5241 :  "The  following  persons  shall  not  testify  in  certain  re- 
spects: ...  3.  Husband  or  wife,  concerning  any  communication  made 
by  one  to  the  other,  or  an  act  done  by  either  in  the  presence  of  the 
other,  during  coverture,  unless  the  communication  was  made,  or  act 
done,  in  the  known  presence  or  hearing  of  a  third  person  competent 
to  be  a  witness ;  and  the  rule  shall  be  the  same  if  the  marital  rela- 
tion has  ceased  to  exist.  4.  A  person  who  assigns  his  claim  or 
interest,  concerning  any  matter  in  respect  to  which  he  would  not,  if 
a  party,  be  permitted  to  testify.  5.  A  person  who,  if  a  party,  would 
be  restricted  in  his  evidence  under  §  5242,  shall,  where  the  property 
or  thing  is  sold  or  transferred  by  an  executor,  administrator,  guar- 
dian, trustee,  heir,  devisee,  or  legatee,  be  restricted  in  the  same  manner 
in  any  action  or  proceeding  concerning  such  property  or  thing." 

§  5242 :  "A  party  shall  not  testify  where  the  adverse  party  is  a 
guardian  or  trustee  of  either  a  deaf  and  dumb  or  an  insane  person, 
or  of  a  child  of  a  deceased  person,  or  is  an  executor  or  administrator, 
or  claims  or  defends  as  heir,  grantee,  assignee,  devisee,  or  legatee  of 
a  deceased  person,  except — i.  To  facts  which  occurred  subsequent  to 
the  appointment  of  the  guardian  or  trustee  of  an  insane  person,  and, 
in  the  other  cases,  subsequent  to  the  time  the  decedent,  grantor,  as- 
signor, or  testator  died.  2.  When  the  action  or  proceeding  relates  to 
a  contract  made  through  an  agent  by  a  person  since  deceased,  and 
the  agent  is  competent  to  testify  as  a  witness,  a  party  may  testify  on 
the  same  subject.  3.  If  a  party,  or  one  having  a  direct  interest,  tes- 
tify to  transactions  or  conversations  with  another  party,  the  latter  may 
testify  as  to  the  same  transactions  or  conversations.  4.  If  a  party 
offer  evidence  of  conversations  or  admissions  of  the  opposite  party, 
the  latter  may  testify  concerning  the  same  conversation  or  admissions. 
5.  In  an  action  or  proceeding  by  or  against  a  partner  or  joint  con- 


OHIO.  799 

tractor,  the  adverse  party  shall  not  testify  to  transactions  with  or 
admissions  by  a  partner  or  joint  contractor  since  deceased,  unless  the 
same  were  made  in  the  presence  of  the  surviving  partner  or  joint 
contractor;  and  this  rule  shall  be  applied  without  regard  to  the  char- 
acter in  which  the  parties  sue  or  are  sued.  6.  If  the  claim  or  defence 
is  founded  on  a  book  account,  a  party  may  testify  that  the  book  is 
his  account  book,  that  it  is  a  book  of  original  entries,  that  the  entries 
therein  were  made  by  himself,  a  person  since  deceased,  or  a  disinter- 
ested person,  non-resident  of  the  county ;  whereupon  the  book  shall 
be  competent  evidence,  and  such  book  may  be  admitted  in  evidence, 
in  any  case,  without  regard  to  the  parties,  upon  like  proof  by  any 
competent  witness.  7.  If  a  party,  after  testifying  orally,  die,  the  evi- 
dence may  be  proved  by  either  party  on  a  further  trial  of  the  case, 
whereupon  the  opposite  party  may  testify  to  the  same  matters.  8.  If 
a  party  die,  and  his  deposition  be  offered  in  evidence,  the  opposite 
party  may  testify  as  to  all  competent  matters  therein.  Nothing  in 
this  section  contained  shall  apply  to  actions  for  causing  death,  or  ac- 
tions or  proceedings  involving  the  validity  of  a  deed,  will,  or  codicil ; 
and  when  a  case  is  plainly  within  the  reason  and  spirit  of  the  last 
three  sections,  though  not  within  the  strict  letter,  their  principles 
shall  be  applied." 

§  5697  (parties  in  divorce  and  alimony  cases  are  to  be  competent 
like  any  other  witnesses). 

§  7284:  "No  person  shall  be  disqualified  as  a  witness  in  any 
criminal  prosecution  by  reason  of  his  interest  in  the  event  of  the 
same,  as  a  party  or  otherwise,  or  by  reason  of  his  conviction  of  any 
crime ;  and  husband  and  wife  shall  be  competent  witnesses  to  testify 
in  behalf  of  each  other  in  all  criminal  prosecutions ;  but  such  in- 
terest, conviction,  or  relationship  may  be  shown  for  the  purpose  of 
affecting  his  or  her  credibility.  But  husband  or  wife  shall  not  testify 
concerning  any  communication  made  by  one  to  the  other,  or  act  done 
by  either  in  the  presence  of  each  other  during  coverture,  unless  the 
communication  was  made  or  act  done  in  the  known  presence  or  hear- 
ing of  a  third  person  competent  to  be  a  witness,  or  unless  in  case 
of  personal  injury  by  either  the  husband  and  [or?]  wife  to  the  other, 
or  in  case  of  neglect  or  cruelty  of  either  to  their  minor  children  under 
ten  years  of  age.  And  the  rule  shall  be  the  same  if  the  marital  rela- 
tion has  ceased  to  exist ;  provided,  that  the  presence  or  whereabouts  of 
the  husband  or  wife  shall  not  be  construed  to  be  an  act  under  this 
section." 

§  7285:  "On  the  trial  of  all  indictments,  complaints,  and  other 
proceedings,  against  a  person  charged  with  the  commission  of  an 
offence,  the  person  so  charged  shall,  at  his  own  request,  but  not  other- 
wise, be  a  competent  witness;  but  his  neglect  or  refusal  to  testify 
shall  not  create  any  presumption  against  him,  nor  shall  any  reference 
be  made  to,  or  any  comment  be  made  upon,  such  neglect  or  refusal." 


800  APPENDIX   OF   STATUTES. 


PENNSYLVANIA. 

Digest  of  Lazvs,  1896  (Pepper  &  Lewis) :  "Witnesses"  §  i :  "Ex- 
cept upon  a  preliminary  hearing  before  a  magistrate  for  the  purpose 
of  determining  whether  a  person  charged  with  a  criminal  offence 
triable  in  the  Court  of  Oyer  and  Terminer  ought  to  be  committed  for 
trial,  and  except  also  upon  a  hearing  under  habeas  corpus  for  the  pur- 
pose of  determining  whether  bail  ought  to  be  taken  upon  a  commit- 
ment for  murder  in  the  first  degree,  or  for  the  purpose  of  determining 
in  any  case  how  much  bail  ought  to  be  required,  or  for  the  purpose 
of  determining  in  any  case  whether  a  person  committed  for  trial  ought 
to  be  further  held,  and  except,  also,  upon  hearings  before  a  grand 
jury,  in  none  of  which  cases  shall  evidence  for  the  defendant  be  heard, 
and  except,  also,  as  provided  in  §  2  of  this  Act,  all  persons  shall  be 
fully  competent  witnesses  in  any  criminal  proceeding  before  any  tri- 
bunal." 

Ih.  §  2:  "In  such  criminal  proceedings,  a  person  who  has  been 
convicted  in  a  court  of  this  Commonwealth  of  perjury,  which  term  is 
hereby  declared  to  include  subornation  of  perjury,  shall  not  be  a  com- 
petent witness  for  any  purpose,  although  his  sentence  may  have  been 
fully  complied  with,  unless  the  judgment  or  conviction  be  judicially 
set  aside  or  reserved  [reversed?],  or  unless  the  proceeding  be  one  to 
punish  or  prevent  injury  or  violence  attempted,  done,  or  threatened  to 
his  person  or  property,  in  which  cases  he  shall  be  competent  to  testify." 

lb.  §  3:  "Nor  shall  husband  and  wife  be  competent  or  permitted 
to  testify  against  each  other,  or  in  support  of  a  criminal  charge  of 
adultery  alleged  to  have  been  committed  by  or  with  the  other,  except 
that,  in  proceedings  for  desertion  and  maintenance,  and  in  any  crim- 
inal proceeding  against  either  for  bodily  injury  or  violence  attempted, 
done,  or  threatened  upon  the  other,  each  shall  be  a  competent  witness 
against  the  other,  and  except,  also,  that  either  shall  be  competent 
merely  to  prove  the  fact  of  marriage  in  support  of  a  criminal  charge 
of  adultery  alleged  to  have  been  committed  by  or  with  the  other." 

lb.  §  4:  "Nor  shall  either  husband  or  wife  be  competent  or  per- 
mitted to  testify  to  confidential  communications  made  by  one  to  the 
other,  unless  this  privilege  be  waived  upon  the  trial." 

lb.  §  8:  "In  any  civil  proceeding  before  any  tribunal  of  this  Com- 
monwealth, or  conducted  by  virtue  of  its  order  or  direction,  no  lia- 
bility merely  for  costs  nor  the  right  to  compensation  possessed  by  an 
executor,  administrator,  or  other  trustee,  nor  any  interest  merely  in 
the  question  on  trial,  nor  any  other  interest  or  policy  of  law,  except 
as  is  provided  in  §  5  [li]  of  this  Act,  shall  make  any  person  incom- 
petent as  a  witness." 

lb.  §  9   (provisions  of  §  2,  supra,  applied  to  civil  proceedings). 

lb.  §  10  (provisions  of  §  4,  supra,  applied  to  civil  proceedings). 


PENNSYLVANIA.  801 

lb.  §  II :  "Nor  shall  husband  or  wife  be  competent  or  permitted 
to  testify  against  each  other,  except  in  those  proceedings  for  divorce 
in  which  personal  service  of  the  subpoena  or  of  a  rule  to  take  deposi- 
tions has  been  made  upon  the  opposite  party,  or  in  which  the  opposite 
party  appears  and  defends,  in  which  case  either  party  may  testify  fully 
against  the  other,  and  except  also  that  in  any  proceeding  for  divorce 
either  party  may  be  called  merely  to  prove  the  fact  of  marriage." 

lb.  §  12:  "In  any  proceedings  brought  by  either  under  the  provi- 
sions of  section  three  laliubi]  to  protect  or  recover  the  separate  prop- 
erty of  either,  both  shall  be  fully  competent  witnesses,  except  that 
neither  may  testify  to  confidential  communications  made  by  one  to  the 
other,  unless  this  privilege  be  waived  upon  the  trial." 

lb.  §  14:  "Nor,  when  any  party  to  a  thing  or  contract  in  action 
is  dead,  or  has  been  adjudged  a  lunatic,  and  his  right  thereto  or 
therein  has  passed,  either  by  his  own  act  or  by  the  act  of  the  law, 
to  party  on  the  record  who  represents  his  interest  in  the  subject  in 
controversy,  shall  any  surviving  or  remaining  party  to  such  thing  or 
contract,  or  any  other  person  whose  interest  shall  be  adverse  to  the 
said  right  of  such  deceased  or  lunatic  party,  be  a  competent  witness 
to  any  matter  occurring  before  the  death  of  said  party  or  the  adjudica- 
tion of  his  lunacy;  unless  the  proceeding  is  by  01  against  the  surviv- 
ing or  remaining  partners,  joint  promisors,  or  joint  promisees,  of  such 
deceased  or  lunatic  party,  and  the  matter  occurred  between  such  sur- 
viving or  remaining  partners,  joint  promisors,  or  joint  promisees  and 
the  other  party  on  the  record,  or  between  such  surviving  or  remain- 
ing partners,  promisors,  or  promisees  and  the  person  having  an  in- 
terest adverse  to  them,  in  which  case  any  person  may  testify  to  such 
matters ;  or,  unless  the  action  be  ejectment  against  several  defendants, 
and  one  or  more  of  said  defendants  disclaims  of  record  any  title  to 
the  premises  in  controversy  at  the  time  the  suit  was  brought  and 
also  pays  into  Court  the  costs  accrued  at  the  time  of  his  disclaimer, 
or  gives  security  therefor  as  the  Court  in  its  discretion  may  direct,  in 
which  case  such  disclaiming  defendant  shall  be  a  fully  competent  wit- 
ness; or,  unless  the  issue  or  inquiry  be  dcvisavit  vcl  non,  or  be  any 
other  issue  or  inquiry  respecting  the  property  of  a  deceased  owner, 
and  the  controversy  be  between  parties  respectively  claiming  such 
property  by  devolution  on  the  death  of  such  owner,  in  which  case  all 
persons   shall   be   fully   competent   witnesses." 

lb.  §  15:  "But  no  person  who  is  incompetent  under  clauses  (a), 
(&),  (c),  and  (d)  [§§  9,  10,  11,  13,  SHpra'\  of  this  section  shall  be- 
come competent  by  the  general  language  of  clause  {e)  [§  14,  supra\." 
lb.  §  16:  "Any  person,  who  is  incompetent  under  clause  (r)  [§  14, 
supra]  of  section  five  by  reason  of  interest,  may,  nevertheless,  be 
called  to  testify  against  his  interest,  and  in  that  event  he  shall  become 
a  fully  competent  witness  for  either  party;  and  such  person  shall  also 
become   fully  competent   for  either  party  by  a  release  or  extinguish- 


803  APPENDIX  OF  STATUTES. 

ment  in  good  faith  of  his  interest,  upon  which  good  faith  the  trial 
judge  shall  decide  as  a  preliminary  question." 

lb.  §  i8:  "Hereafter,  in  any  civil  proceeding  before  any  tribunal 
of  this  Commonwealth,  or  conducted  by  virtue  of  its  order  or  direc- 
tion, although  a  party  to  the  thing  or  contract  in  action  may  be  dead 
or  may  have  been  adjudged  a  lunatic,  and  his  right  thereto  or  therein 
may  have  passed,  either  by  his  own  act  or  by  the  act  of  the  law,  to 
a  party  on  a  record  who  represents  his  interest  in  the  subject  in  con- 
troversy, nevertheless,  any  surviving  or  remaining  party  to  such  thing 
or  contract  or  any  other  person  whose  interest  is  adverse  to  the  said 
right  of  such  deceased  or  lunatic  party,  shall  be  a  competent  witness 
to  any  relevant  matter,  although  it  may  have  occurred  before  the  death 
of  said  party  or  the  adjudication  of  his  lunacy;  if  and  only  if  such 
relevant  matter  occurred  between  himself  and  another  person  who  may 
be  living  at  the  time  of  the  trial  and  may  be  competent  to  testify,  and 
who  does  so  testify  upon  the  trial,  against  such  surviving  or  remain- 
ing party  or  against  the  person  whose  interest  may  be  thus  adverse,  or 
if  such  relevant  matter  occurred  in  the  presence  or  hearing  of  such 
other  living  or  competent  person." 

lb.  §  21 :  "In  any  civil  proceeding,  whether  or  not  it  be  brought 
or  defended  by  a  person  representing  the  interests  of  a  deceased  or 
lunatic  assignor  of  any  thing  or  contract  in  action,  a  party  to  the 
record  or  a  person  for  whose  immediate  benefit  such  proceeding  is 
prosecuted  or  defended,  or  any  other  person  whose  interest  is  adverse 
to  the  party  calling  him  as  a  witness,  may  be  compelled  by  the  adverse 
party  to  testify  as  if  under  cross-examination,  subject  to  the  rules  of 
evidence  applicable  to  witnesses  under  cross-examination,  and  the  ad- 
verse party  calling  such  witnesses  shall  not  be  concluded  by  his  testi- 
mony; but  such  person  so  cross-examined  shall  become  thereby  a 
fully  competent  witness  for  the  other  party  as  to  all  relevant  matters, 
whether  or  not  these  matters  were  touched  upon  in  his  cross-examina- 
tion ;  and  also  where  one  of  several  plaintiffs  or  defendants,  or  the 
person  for  whose  immediate  benefit  such  proceeding  is  prosecuted  or 
defended,  or  such  other  person  having  an  adverse  interest,  is  cross- 
examined  under  this  section,  his  co-plaintiffs  or  co-defendants  shall 
thereby  become  fully  competent  witnesses  on  their  own  behalf  as  to 
all  relevant  matters,  whether  or  not  these  matters  were  touched  upon 
in  such  cross-examination." 

lb.  §  22:  "Except  defendants  actually  upon  trial  in  a  criminal 
court,  any  competent  witness  may  be  compelled  to  testify  in  any  pro- 
ceeding, civil  or  criminal;  but  he  may  not  be  compelled  to  answer 
any  question  which,  in  the  opinion  of  the  trial  judge,  would  tend  to 
criminate  him;  nor  may  the  neglect  or  refusal  of  any  defendant,  actu- 
ally upon  trial  in  a  criminal  court,  to  offer  himself  as  a  witness  be 
treated  as  creating  any  presumption  against  him,  or  be  adversely  re- 
ferred to  by  Court  or  counsel  during  the  trial." 


PENNSYLVANIA;  WISCONSIN.  803 

"Desertion,"  §  3  (action  for  maintenance  against  a  deserting  hus- 
band; the  wife  to  be  competent  for  Commonwealth,  and  the  husband 
to  be  competent). 

St.  i8pp,  April  II,  Pub.  L.  41  (preamble  stating  a  purpose  to  re- 
move existing  disadvantages  of  the  wife). 

lb.  §  I :  "In  any  civil  action  brought  against  the  husband  to  re- 
cover necessaries  furnished  to  the  wife,  if  the  husband  makes  defence 
at  the  trial  upon  the  ground  that  the  wife  had  left  him  without  justifi- 
cation or  excuse  before  the  necessaries  were  furnished,  or  upon  any 
other  ground  which  attacks  the  wife's  character  or  conduct,  she  shall 
be  a  competent  witness  in  rebuttal  for  the  plaintiff." 

lb.  §  2 :  "In  any  criminal  proceeding  brought  against  the  husband, 
if  he  makes  defence  at  the  trial  upon  any  ground  which  attacks  the 
wife's  character  or  conduct,  she  shall  be  a  competent  witness  in  re- 
buttal   for   the   Commonwealth." 

St.  ipoj,  No.  32 :  In  prosecutions  for  a  husband's  failure  to  sup- 
port, "the  wife  shall  be  a  competent  witness." 


WISCONSIN. 

Statutes,  1898,  §  4068:  "No  person  shall  be  disqualified  in  any 
action  or  proceeding,  civil  or  criminal,  by  reason  of  his  interest  in 
the  event  of  the  same,  as  a  party  or  otherwise ;  and  every  party  shall 
be  in  every  such  case  a  competent  witness  except  as  otherwise  pro- 
vided in  this  chapter.  But  such  interest  or  connection  may  be  shown 
to  affect  the  credibility  of  the  witness.  Any  party  to  the  record  in 
any  civil  action  or  proceeding,  or  any  person  for  whose  immediate 
benefit  any  such  action  or  proceeding  is  prosecuted  or  defended,  or  the 
president,  secretary,  or  other  principal  officer  or  general  managing 
agent  of  any  corporation  which  is  such  a  party  or  for  whose  benefit 
the  action  or  proceeding  is  prosecuted  or  defended,  may  be  examined 
upon  the  trial  of  any  such  action  or  proceeding  as  if  under  cross- 
examination,  at  the  instance  of  the  adverse  party  or  parties  or  any  of 
them,  and  for  that  purpose  may  be  compelled,  in  the  same  manner  and 
subject  to  the  same  rules  for  examination  as  any  other  witness,  to 
testify;  but  the  party  calling  for  such  examination  shall  not  be  con- 
cluded thereby,  and  may  rebut  the  evidence  given  thereon  by  counter 
or  impeaching  testimony." 

§  4069:  "No  party,  and  no  person  from  him,  through,  or  under 
whom  a  party  derives  his  interest  or  title,  shall  be  examined  as  a 
witness  in  respect  to  any  transaction  or  communication  by  him  per- 
sonally with  a  deceased  person  or  with  a  person  then  insane  in  any 
civil  action  or  proceeding  in  which  the  opposite  party  derives  his 
title  or  sustains  his  liability,  to  the  cause  of  action  from,  through,  or 
under  such  deceased  person  or  such  insane  person,  or  in  which  such 


804  APPENDIX   OF   STATUTES. 

insane  person  is  a  party  prosecuting  or  defending  by  guardian,  unless 
such  opposite  party  shall  first  be  examined  or  examine  some  other 
witness  in  his  behalf  to  such  transaction  or  communication  between 
the  deceased  or  insane  and  such  party  or  person,  or  unless  the  testi- 
mony of  such  deceased  person  given  in  his  lifetime  or  of  such  insane 
person  be  first  read  or  given  in  evidence  by  the  opposite  party;  and 
then,  in  either  case  respectively,  only  in  respect  to  such  transaction  or 
communication  of  which  testimony  is  so  given  or  to  the  matters  to 
which  such  testimony  relates";  amended  by  St.  1901,  c.  181,  by  adding 
after  the  word,  "party,"  in  the  first  line,  the  words  "in  his  own  behalf 
or  interest." 

§  4070:  "No  party,  and  no  person  from,  through,  or  under  whom 
a  party  derives  his  interest  or  title,  shall  be  examined  as  a  witness 
in  respect  to  any  transaction  or  communication  by  him  personally  with 
an  agent  of  the  adverse  party  or  an  agent  of  the  person  from,  through, 
or  under  whom  such  adverse  party  derives  his  interest  or  title,  when 
such  agent  is  dead  or  insane  or  otherwise  legally  incompetent  as  a 
witness,  unless  the  opposite  party  shall  first  be  examined  or  examine 
some  other  witness  in  his  behalf  in  respect  to  some  transaction  or 
communication  between  such  agent  and  such  other  party  or  person; 
or  unless  the  testimony  of  such  agent,  at  any  time  taken,  be  first  read 
or  given  in  evidence  by  the  opposite  party ;  and  then,  in  either  case 
respectively,  only  in  respect  to  such  transaction  or  communication  of 
which  testimony  is  so  given  or  to  the  matters  to  which  such  testimony 
relates." 

§  4071 :  "In  all  criminal  actions  and  proceedings  the  party  charged 
shall,  at  his  own  request,  but  not  otherwise,  be  a  competent  witness ; 
but  his  refusal  or  omission  to  testify  shall  create  no  presumption 
against  him  or  any  other  party  thereto." 

§  4072:  "A  husband  or  wife  shall  not  be  allowed  to  disclose  a 
confidential  communication  made  by  one  to  the  other  during  their  mar- 
riage, without  the  consent  of  the  other.  In  an  action  for  criminal 
conversation  the  plaintiff's  wife  is  a  competent  witness  for  the  defend- 
ant as  to  any  matter  in  controversy  except  as  aforesaid." 

§  4073 :  "A  person  who  has  been  convicted  of  a  criminal  offence 
is,  notwithstanding,  a  competent  witness,  but  the  conviction  may  be 
proved  to  affect  his  credibility,  either  by  the  record  or  by  his  own 
cross-examination,  upon  which  he  must  answer  any  question  relevant 
to  that  inquiry,  and  the  party  cross-examining  him  is  not  concluded 
by  his   answer." 

§  4085 :  "The  Court  before  whom  an  infant  or  person  apparently 
of  weak  intellect  shall  be  produced  as  a  witness  may  examine  such 
person  to  ascertain  his  capacity  and  whether  he  understands  the  nature 
and  obligations  of  an  oath." 


LIST  OF  CASES  QUOTED. 


PAGE 

Abrath  v.  North  Eastern  R.  Co.. 701 
Acklen's   Executor   v.    Hickman  .  98 

Adam  v.  Kerr 250,  282 

Adamthwaite  v.    Synge 211 

Adkins   v.   Commonwealth 764 

Alabama   R.    Co.   v.    Taylor 706 

Alberty  v.   United    States 147 

Allen   V.    Rand    112 

—  V.  Rostain 352 

—  V.  Seyfried    109 

Amey  v.  Long 442 

Amoskeag  Manufacturing  Co.  v. 

Head 26 

Anderson   v.    Bank 508 

Anderson's   Trial 352 

Annesley  v.  Anglesea. .  .145,  257,  509 

Answer  of  the  Judges   653 

Appleton  V.  Braylirook  n.  319 

Archer  v.   Railroad    Co iii 

Armory  v.   Delamirie 147 

Ashley  V.   Ashley 627 

Ashworth   v.   Kittredge 2,^2, 

Atherton  v.   Defreeze 200 

Atlantic  &  B.  R.  Co.  v.  Reynolds  303 
Attorney-General    v.     Cast-Plate 

Glass  Co 753 

—  V.    Drummond n.  670 

— <  V.  Hitchcock    n.  26,   131 

—  V.   Le   Merchant    225 

—  V.   Radloff   n.  495 

—  V.  Shore  658 

Attwood   V.   Small 175 

Austin  V.  Thomson  . . .  . : n.  202 

Aveson  v.  Kinnaird  .  .   n.  2,27,  n.  341 

Bacon  v.  Charlton. 326 

Baird  v.  Cochran n.  441 

Barabasz  v.  Kabat 710 

Barber   v.    Merriam 2^7 

Barbre  v.  Goodale 622 

Baring  v.  Reeder   n.  472 

Barker  v.  Ray  n.  148 

—  V.  Sterne  588 

Barnes    v.    Harris 516 

Barry  v.  Butlin 699 

Bartlett  v.  Hoyt  n.  735 

Bartlett  v.  Smith  734 

Bate  V.  Hill    ».  157 

Bates  V.   Sharon n.  401 

Baulec  v.   Railroad   Co 44 

Baum   V.    Synn 617 

Baxendale  v.  Bennett   590 

Beacon  L.  &  T.  Ass.  Co n.  659 

Beatson  v.  Skene  544 


PAGE 
Bellefontaine  &  I.  R.  Co.  v.  Bailey 

434 

Bembridge's   Trial 495 

Bemis  v.  Temple 69 

Bergen    v.    People 181 

Berkeley  Peerage  Trial    131 

Birt  V.   Barlow   187 

Black  V.  R.  Co n.  578 

Blake    v.    Assurance    Co 50 

Blakey's   Heirs  v.   Blakey's 

Executrix 130 

Bogie    V.    Nolan 272 

Bolton  V.  Sivcrpool  27i 

Bootle  V.   Blundell n.  249 

Bottomley  v.  United  States 49 

Boulter  v.   Peplow n.  239 

Bourda   v.   Jones 172 

Boyd   V.    United    States 480 

Boylan    v.     Meeker 336 

Braddon' s    Trial 360,  446 

Breadalbane  Case 184,  301 

Brett    V.    Rigdon    571 

Bretta   v.    Sevine 612 

Bridges  v.  R.  Co u.  710,  736 

Brown  v.  Byrne 609,  ».  662 

—  V.   Commonwealth    397 

■ —  V.  Walker 491 

Bryant  v.  Owen n.  629 

Bucklin  v.    State 302 

Buel   V.   State 717 

Bullard   v.    Pearsai! 119 

Burke    v.    Dulaney 566 

Burns  v.   Barenfield ».  434 

Burr's  Trial   478,  499,  540 

Burrough  v.   Martin loi 

Bushel's  Case  93,  «.  352 

Bushnell's    Trial 92 

Caldwell   V.   Stuart 472 

Callanan  v.   Shaw 171 

Calvert  v.   Flower 201 

Cameron  v.   Peck   n.  245 

Campau  v.  Dewey   n.  384 

Capen  v.   Stoughton 639 

Carpenter's  Estate 94 

Caruthers   v.    Eldridge n.   208 

Carver  v.  Carver 295,  705,  770 

—  V.   Jackson 295 

Castlemainc's    Trial 129 

Central  Transportation  Co.  7'. 

Pullman's    Palace   Car   Co.  .«.    712 

Central  \'^t.  R.  Co.  v.  Soper  70 

Chamberlin   v.    Ball    n.  322 

Chandler  v.  Allison «.  386 


805 


806 


LIST  OF  CASES  QUOTED. 


AGE 

Chapin    v.    Dobson 620 

Chase  v.  Sowell n.  44 

Cherry  v.  Slade n.  346 

Cheyney's    Case , 672 

Chicago  V.   Powers 43 

Chicago  City  R.  Co.  v.  Carroll...  16 

Church  V.   Hubbart 318 

Clarke  v.   Periam 38 

Clemens  v.   Conrad 242 

Clements  v.   Marston 531 

Clinton  v.  State  n.  357 

Cloyes    V.    Thayer 496 

Cogdell  t'.  R.  Co n.  705 

Cohn  V.   Saidel 25 

Cole  V.  Gibson 236 

Coleman  v.   People 48 

—  V.  Southwick 258 

Coleman's    Will 526 

Collins  V.  Mack 136 

—  V.   People 89 

vColumbia   &    R.    R.    Co.   v. 

Hawthorne n.  716 

Combe  V.  London 367 

Commonwealth  v.  Anthes 746 

—  V.  Chance «.    349 

—  V.  Dana 438 

—  V.  Desmond  n.  760 

—  V.  Emery 230 

—  V.  Hardy 27 

—  V.  Jackson  n.  47 

—  V.  Kenney     142 

—  V.  Keyes 191 

—  V.  Mead 535 

—  V.  Morey    «.   151 

—  V.  Morrell 223 

—  V.  Phillips 215 

—  V.  Porter 74i 

—  V.  Richardson «.  312 

—  V.  Robinson  56,  735 

—  V.  Smith 418 

—  V.  Sturtivant «.    401 

—  V.  Trefethen n.  332 

—  V.  Webster.  ..21,  24,  n.  146,  182, 

503,  716 

Conklin  v.  Stamler 287 

Connors  v.   People n.  505 

Cook's    Trial 457 

Cooper  V.  State n.  348 

Cornell  v.  Green   n.  401 

Cornish  v.  Abington   574 

Cornish's  Trial 361 

Corser  v.  Paul  136 

Cossens,  ex  parte   n.  505 

'Counselman  v.  Hitchcock  n.  474,  486 

Coveney  v.  Tannahill   519 

Cowley  V.   People n.  iii 

Cowper's   Trial    322 

Craig  dem.   Annesley  v.   Anglesea 

145,  257,  509 

Crowninshield  v.  Crowninshield 

n.  721 

Cunningham  v.  Railroad  Co 42 

^Cuyler  v.    McCartney 140 


PAGE 

Daggett  V.  Shaw  n.  295 

Darby  v.   Ouseley   n.   T)^^ 

Darling    v.    Westmoreland 05 

Davie  v.   Briggs 732 

Davis  V.  Field  n.   100 

—  V.  United  States  722 

Davison's  Trial  36,  414 

DeBerenger's   Trial 97 

Delaney   v.    Philadelphia  539 

Den  V.  Vreelandt  217 

Denn  v.  Fulford  n.  318 

Dewey  v.   Hotchkiss 200 

Dixon  V.  Vale   n.  505 

Dobson  V.  Graham 454 

Dodd  V.  Norris  n.  157 

Doe  V.  Auldjo n.  281 

—  V.  Date 451,  454 

—  V.   Fleming 184 

—  V.  Harvey  234 

—  V.  Hindson  249 

—  V.  Hiscocks    676 

—  V.  Needs    674 

—  V.  Newton 423 

—  V.  Palmer 332 

—  V.  Perkins loi 

—  V.  Suckermore n.  97,  418 

—  V.  Ross 241 

—  V.  Winn 229 

Downer  v.    Dana 134 

Doyle  V.  Bradford   754 

Drayton  v.  Wells n.  271 

Dublin  Election  Case 507 

Dunbar  v.  Madden n.  250 

Dunning  v.  M.  C.  R.  Co n.  760 

Dwyer   v.   Collins 226 

Eady  v.  Shivey  309 

Eagleton  v.  Kingston 96 

Earle  v.    Rice 555 

Eason  v.  Chapman  n.  417 

Eastman  v.  Moulton   284 

Eaton  V.  Rice 192 

—  V.  Telegraph  Co n.  62 

Eaton's    Trial 195 

Eden  v.  Blake   n.  607 

Eisenlord  v.  Clum   n.  279 

Ellicott  V.  Pearl    310 

Elliott  z'.   Van  Buren n.  253 

Ellis  V.    Buzzell 718 

Ellsworth  V.  Potter  122 

Emerson  v.  Lowell  Gaslight  Co  .  63 

Enos  V.  Tuttle n.  349 

Essex   V.    Day 578 

Evans  v.  People 81 

—  V.  Rothschild    267. 

Ewing  V.    Goode    709 

Fabrigas   v.    Mostyn 349 

Fairbanks  z'.   Snow 601 

Fairley  z'.   Smith   n.  326 

Fairlie  v.  Denton   144 

Fennerstein's  Champagne n.  291 


LIST  OF  CASES  QUOTED. 


807 


PAGE 

Fenwick  v.  Bell  396,  413 

Fenwick's   Trial 751 

Ferrers  v.  Shirley 95 

Fielder  v.    Collier 293 

First  Nat'l  Bank  v.  Wirebach's 

Ex'rs 436 

Fiske  V.  Cowing  413 

Fletcher  z'.   State   113 

Flight  V.  Robinson n.  461 

Folkes  V.  Chadd h.  394 

Foster  v.   Brooks    304 

—  V.  Jolly 625 

—  V.  Mackinnon 574 

—  V.  People  504 

Fox  V.   State    752 

FrankKn    Bank    v.    Pennsylvania 

D.    &    M.   S.  N.  Co 137 

Fraser  v.   Jennison 390 

Free  v.  BuckirTgham  455 

Frost's   Trial n.   755 

Gaines  v.  Relf ..  .n.  305 

Ganahl  v.  Shore  n.  286 

Garden  City  S.  Co.  v.  Miller  .n.  321 

Gardner  v.   People n.  366 

Garrard    v.    Frankel 584 

Gartside  v.   Insurance  Co 547 

Gass  V.  Stinson  n.  417 

Gassett  v.   Glazier n.  746 

Gathercole  I'.   Miall 223 

Gelott  V.  Goodspeed 250 

Ger.try  v.   McMinnis 161 

Gertz  V.  Fitchburg  R.  Co 157 

Gibblehouse  v.   Stong 139 

Gillis  V.  Gillis n.  249 

Glynn  v.  Bank  of  England «.  283 

Golden   v.    State n.   363 

Goode  V.   Riley   n.  663 

Goodhand  z'.   Benton n.  15 

Goodright  v.  Moss 179 

Goss  V.  Lord  Nugent 626 

Grant  v.  Grant n.  669 

Great  Western  Turnpike  Co.  v. 

Loomis      n.  453 

Green  v.  Weaver n.  478 

Greenough   v.   Gaskell   ...513,  ti.   521 

Griswold  v.  Pitcairn 214 

Groenwelt    v.    Burrell 374 

Guardhouse  v.  Blackburn. 594,  n.  606 
Gulf,  C.  &  F.  R.  Co.  V.  Shieder.. 727 

Haak  v.  Breidenbach 634 

Hales'  Trial    418 

Ham's  Case 187 

Hardy  v.  Merrill    401 

Hardy's    Trial 537 

Harriman  ?'.    Brown   298 

Harrison's   Trial   36 

Hartford  Bridge  Co.  v.  Granger  144 
Hathaway  v.  Hemingway  ....  .n.  382 

Hatton  V.   Robinson    514 

Heane  v.  Rogers 136 


PAGE 

Hein  t'.  Holdridge   29 

Hendrickson  v.    People 153 

Hennell  v.  Lyon h.  228 

Hennessy  v.  Wright n.  545 

Henry  v.  Lee 105 

Hillis  V.   Wylie 11.  417 

Hindson  v.    Kersey 176 

Hingeston  v.   Kelly 700 

Hoag  V.  Wright   430 

Hollingham  t'.  Head   61 

Hooper  z>.   Moore 756 

Howley  v.  Whipple 209 

Howser  v.   Commonwealth  .269,  392 

Hubbard    v.    Greeley 592 

Hudson  V.   Revett   560 

Huflf  7'.   Bennett 106 

Hughes  V.  R.  Co «.  360 

Hunt  y.  Lowell  Gaslight  Co 64 

Hutchinson  v.  Tatham n.  611 

Hutchison  v.  Bowker  744 

Ings'  Trial  1 10,  162 

Insurance  Co.  v.  Mosley   .n.  327,  341 

Irish  Society  v.  Derry 15 

Ivy's   Trial n.   300 

Jack  V.  Mutual  R.  F.  Life  Ass'n. 

n.  343 

Jeans  v.  Wheedon 254 

Jodrell,    re 659 

Johnson    v.    Lawson 280 

Joliet  R.  Co.  V.  Velie  7^:i 

Jones  t'.  Guana  Co 311 

—  V.  Randall «.  629 

—  V.  Reilly 521 

Judges,  Answer  of  the 653 

Kelley  z>.  Richardson 80,  n.  395 

Kempsey  v.  McGinnis 405,  432 

Kennedy  7'.  Doyle 292,  306 

Kidd's     Administrator     v. 

Alexander's    Administrator  ...314 

Kilpatrick  t'.   Commonwealth 758 

Kingston's  Case 507,  546 

Knight  V.   Barber «.  606 

Knowles    v.    People 467 

Kurtz  V.  Hibner 681,  682 

Kynaston  z'.   East  India  Co 462 

I^ke  z:   People  «.  434 

Lamb  v.  Mobcrly  235 

Langley  z:  Earl  of  Oxford 760 

Laughlin  v.   State  363 

Lawes  v.   Reed 105 

Lawless  z:   Queale   n.  238 

Lawrence   v.    Clark n.   227 

Layman's    Will 527 

Lefebure  v.   Worden n.  290 

Lenert  v.  State n.  718 

Leroux  Z'.  Brown  650 

Lewis  V.  Dunne 778 


808 


LIST  OF  CASES  QUOTED. 


PAGE 

Leyfield's   Case 2.22. 

Lincoln's   Trial   109 

Lisle's  Trial   357 

Lloyd  V.  Passingham n.  495 

Losee  v.  Losee  n.  250 

Lott   V.    King    108 

Louisville  &  N.  R.  Co.  v.  York  m.  363 

Lovat's  Trial 385 

Low's    Case 641 

McCoy  V.  The  World's 

Columbian  Exposition 758 

M'Crea    v.    Purmort 617 

McKee,  ex  parte  n.  453 

M'Naghten's  Case  n.  434 

M'Reynolds  v.   M'Cord 147 

Macclesfield's  Trial 120 

Mahaska  Co.  v.   Ingalls n.  278 

Maitland   v.   Zanga 391 

Manning  v.  R.  Co n.  754 

Massey  v.   Farmer's   National 

Bank .237 

Mattison  v.  State   n.  26 

Maynard  v.  Buck n.  71 

Mayo  V.   Mayo   n.  495 

Mayor,    etc.    of    New    York    v. 

Second   Ave.    R.    Co 102 

Meath  v.   Winchester    , 206 

Melville's   Trial    4,  459 

Menomonie  R.  S.  &  D.  Co.  v. 

R.  Co 707 

Mercer  v.   State 529 

Middleton   v.    Mass 207 

—  V.  Melton 275 

Miller  v.   Curtis    41 

—  V.  Salomons n.   359 

—  V.  Travers 670,  675 

Milne  &  Seville  v.   Leisler 343 

Mississippi  v.  Johnson    n.  542 

Monkton  v.  Attorney  General 

n.  279,  282 

Moody  V.  Rowell 385 

Mooney  v.    Olsen 338 

Morris  v.  Miller 186 

—  V.  Sessees    n.   300 

Mortimer  z^.  McCallan n.  229 

Morton  v.  Folger n.  295 

Munn  V.  Godbold   n.  233 

Mutual  Life  Ins.  Co.  v.   Hillmon 

331 

Myers  v.  Sadd  n.  679 

—  V.  Sari 661 

Nash  V.  Hunt   n.  404 

Naumberg  v.  Young n.  615 

Newsom  v.  Luster  251 

Newton   v.   Tolles 599 

New     York     Iron     Mine    v. 

Negaunee   Bank 388 

New   York,   L.   &  W.    R.   Go's 

Petition n.  760 

Nickerson    v.    Spindell    233 

North  Brookfield  v.  Warren   .  .n.  280 


PAGE 

Obermann  Brewing  Co.  v.  Adams 

210 

Omichund  v.  Barker  312,  357,  «.  361 

Owen  V.  Warburton n.  635 

Owens  V.  Owens  n.  88 

Oxier  V.  United  States 124 

Paige  V.  Willet n.  760 

Paine  v.  Aldrich n.  404 

Papendick  v.  Bridgewater w.  277 

Park  Bros.  &  Co.  v.  Blodgett  & 

Clapp   Co 581 

Parnell    Commission's    Proceedings 

...93,    109,   194,  261,  264,  350,   385 

Paxton  V.  Douglas   477,  n.  495 

Pearce  v.   Hooper 205 

Pember   v.    Mathers 174 

Penn    and    Mead's   Trial 474 

Penn  M.  S.  Ins.  Co.  v.  M.  S. 

B.  &  T.   Co 410 

People  V.  Arnold  ZZ 

—  V.  Davis  449 

—  V.  Doyle 15 

—  V.  Jackson     125 

—  V.  McMahon     154 

—  V.  Matteson    n.    359 

—  V.  Rector   155 

—  -11.  Shay    38 

—  V.  Strong   n.  150 

—  V.  Tucker n.  60 

—  V.  Tyler    89,  501 

—  V.  Walters   n.  60 

—  V.  Wells    354 

Perry  v.  Burton     196 

Philadelphia  &  T.   R.  Co.  v. 

Stimpson 386 

Philipson   v.    Chase n.   233 

Phillips   V.   Marblehead    533 

—  V.  Meily   n.  607 

—  V.  Willow    68 

Pickens   v.    State    302- 

Pinney  v.  Cahill   324 

Poole  V.  Dicas    290 

Post  V.  R.   Co M.  371 

Potter  V.   Easton    613: 

Powers  V.   Russell    703 

Pratt  V.  White  n.  284 

Price  V.   Hudson    564 

—  V.  Torrington     290 

Priestwood  v.  Watson  761 

Prince   v.   Samo    199 

Pruden  v.   Alden    631 

Pym   V.   Campbell    568 

Queen's  Case,  The 133,  198,  239 

Rex  or  Regina  v.  Aickles 304 

—  V.  All    Saints       471 

—  V.  Almon     705 

—  V.  Anderson     352 

—  V.  Atwood  &  Robins 176 

—  V.  Baldry   152. 


LIST  OF  CASES  QUOTED. 


809 


Rex 

-  V. 

-  V. 

V. 

-  V. 

-  V. 

V. 

V. 

-  V. 

-  V. 

V. 

-  V. 
> —  V. 

-  V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

-  V. 

-  V. 

V. 

-  V. 
' —  V. 
^-  V. 

V. 

V. 

V. 

V. 

-  V. 

V. 

V. 

V. 

-  V. 

-  V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

-  V. 

V. 

V. 

-  V. 

V. 

V. 

-  V. 


PAGE 

or  Regina  v.  Bedfordshire.  .296 

Bembridge  495 

Braddon    360,   446 

Brasier     J7 

Burdett     n.    148 

Burton 182 

Bushel    93,  n.  352 

Bushnell   92 

Castell    Careinion    n.   242 

Castlemaine   129 

Castro,    alias    Tichborne.  .  .126 

Cliviger     469 

Cockin    n.    72i^ 

Cook    457 

Cooper    45 

Cornish   361 

Cowper  322 

Davidson   2>(>,  4^4 

De    Berenger    97 

Eaton '. 195 

Eriswell    266 

Erith    279 

Exall   35 

Farler    I77 

Fenwick    751 

Foster    ' n.   341 

Garbett     496 

Hales     418 

Hardy     537 

Harrison     36 

Hay   549 

Hill    76 

Ings   no,   162 

Ivy    n.    300 

Jenkins    n.  274 

Kingston      546 

Langmead     n.  732 

Lincoln    lOg 

Lisle    357 

Lovat 385 

Macclesfield    120 

Melville  4,  459 

Moore     151 

Muscot    173 

Oddy    37 

O'Doherty   n.   705 

Penn    and    Mead 474 

Ramsdcn     106 

Reading   179 

Rookwood    123 

Rosser    754 

Rowton    28,   415 

Shaftesbury     534 

Shrewsbury     440 

Sidney    168,   190,  417 

St.    Martin's    100 

Thanet    413 

Tooke 143,  202 

Turner    28 

Walker    77,   453 

Warickshall     150 

Watson  121,  126,  232 


PAGE 

Rex  or  Regina  v.  Whitebread 129 

—  V.  Whyley    „.  48 

—  V.  Woodcock    27^ 

—  V.  Woodfall    638 

Railroad  Co.  v.  Schulz n.  401 

Ramsdell  v.  Clark    615 

Rankin  v.  Fidelity  Ins.  T.  &  S. 

D.  Co „    746 

Read  v.  Brooknian  «.  222 

—  V.  Hide    igo 

Reynolds  v.   Burgess  S.  T.  Co... 277 
Rickerson  v.  Hartford  Fire  Ins. 

Co 668 

Rmghouse  v.   Keener    n.  301 

Robbins   v.    Windover    6^^ 

Robinson  v.  Dewhurst  - «.  298 

Robson  V.  Kemp    n.  521 

Roche  V.  Railroad  Co .329 

Rogers  v.  Brent 383 

Rookwood's   Trial 123 

Roosa  V.  Loan  Co «.  328 

Ross    V.    Denioss    2>'Ji 

Rowt's  Administratrix  v.  Kile's 

Admin  istrator    96 

Rucker  z/.    Eddings    382 

Rush  V.  French    16,  19 

Rusling  V.    Rusling    2i2i7 

Russell  V.  Jackson  n.  528 

Sayles  v.    Briggs    629 

Schmisseur  v    Beatrie    724 

Scoggin   V.   Dalrymple   294 

Scott  V.    Sampson    32 

—  V.  London  &  St.  K.  Docks  Co. 
729 

Seibles  v.  Blackhead  ».  395 

Shaftesbury's    Trial     534 

Shailer  v.   Bumstead    n.  Z27 

Shaw   V.   Moore    >«.  359 

Sheehan  v.   Kearney    n.  722 

Shepherd  v.   Thompson    n.  295 

Shields   v.   Boucher    280 

Shrewsbury's   Trial    440 

Sidney's  Trail   168,  190,  417 

Siegfried  v.  Levan  204 

Singleton  t'.   Bremar   208 

Sisson  V.   Railroad  Co 325 

Skinner  v.  Great  Northern  R.  Co 


Slatterie  v.  Poolcy  238 

Smith  V.  Blakey 276,  291 

—  V.  Hughes   H.  66g 

—  V.  Rentz     285 

—  V.  South   Royalton   Bank..,«.  594 

—  V.  Young    H.  236 

Snow  V.  R.  Co n.  396 

Somes  V.  Brewer n.  594 

Soule's    Case    473 

Springer  v.  Chicago  m.  164 

St.  John  V.  Lofland n.  88 

Stafford  v.   Fargo    n.   388 

Stamper  v.  Griffin,  203 


810 


LIST  OF  CASES  QUOTED. 


PAGE 

Stanley   v.    White 569 

Starr  v.  United  States  I47 

State  V.   Adams    «•   60 

—  V.  Barrett      183 

—  V.  Bohan   "■  275 

—  V.  Brady    73i 

I —  V.  Cass     597 

—  V.  Cleaves   502 

—  V.  Flanders       97 

—  V.  Flynn     484 

—  V.  Fox    351 

—  V.  Greenburg    125 

—  V.  Hayward     «•   332 

—  r.  Hilmantel    450 

—  V.  Kent,  alias  Pancoast   62 

—  V.  Lapage     52 

—  V.  Lynde      243 

—  V.  McO'Blenis    «•   260 

■^v.  Main    «•  648 

—  V.  Manchester  &  L.   Railroad.  31 

—  V.  Moses   739 

—  V.  Novak     149 

—  V.  Nowell      M.  487 

—  V.  Pike       400 

—  V.  Quarles     488 

—  V.  Randolph   121 

—  V.  Thaden        499 

—  V.  Wentworth    506 

—  V.  Willis     135 

—  V.  Winkley    n.   187 

State  Bank  v.  Hutchinson   n.  350 

Stephens  v.   Bernays    86 

Stevison  v.  Earnest n.  439 

Stewart  v.   Allison    305 

' —  V.  People     158 

Steyner  v.  Droitwich    300 

Stoops  V.  Smith    666 

Storey  v.  Lennox 461 

Stout  V.   Slattery    216 

Strachan,    re    7)1^ 

Sugden  V.  Lord  St.  Leonards. 

273,  333 

Summons  v.  State  192,  n.  270 

Sutton  V.  Sadler 720 

Talbot  V.  Cusack n.  102 

Tarrant  v.  Ware   248 

Taylor  v.   Monroe    398 

Teachout  v.  People   155 

Tenney  v.  Tuttle    30 

Thanet's    Trial      413 

Third  G.  W.  Turnpike  Co.  v. 

Loomis 127 

Thompson  v.  Church    29 

—  V.  Clubley    625 

—  V.  Kilborne 517 

^  ■y.  R.    Co n.    543 

—  V.  Trevanion    341 

Thomson  v.   Austen    194 

Throckmorton   v.   Tracy    657 

Thoroughgood's  Case   556 


PAGE 

Tilton  V.  American  Bible  Society. 

660 

—  V.  Beecher    n.   191,  196.  235, 

348,  353 

Tooke's  Trial  143,  202 

Townsley  v.   Sumrall    313 

Trambly  v.   Ricard    577 

Travelers'  Ins.  Co.  v.  Sheppard.  . 

■  •. «.  342 

Trinity  County  Lumber  Co.  v. 

Denham       123 

Truby  v.  Seybert n.  135 

Turner's  Trial  28 


LHrich  v.  McConaughey n.  368 

Union  Pacific  R.  Co.  v.  Botsford. 


•.• '464 

United   States  v.   Cross 485 

—  V.  Doebler     227 

—  V.  Gibert 252 

— ■  V.  Holmes     39 

—  V.  King     n.  342 

—  V.  Macomb    270 

—  V.  Percheman 316 

United  States  Bank  v.  Dandridge. 

...••  •. •.••.■•• •.••643 

LTniversity  of  Illinois  v.  Spalding 
426 

Vaise   v.    Delaval 635 

Vance  v.  Reardon    197 

' —  V.  State    79 

Vander  Donckt  v.  Thelusson    ...  80 

Van   Syckel  v.  Dalrymple n.  606 

Vicksburg  R.  Co.  v.  Putnam... n.  741 

Violette  v.   Rice    663 

Vowles  V.  Young  278 

Waldron  v.  Turpin 215 

Walker's   Trial    "JT,  453 

Walls  V.   Bailey    664 

Wanek   v.   Winona    465 

Ward   V.   State      479 

Warickshall's    Case    150 

Waterman  v.  Whitney    340 

Watson   V.    King    n.    138 

Watson's  Trial     121,  126,  232 

Webb   V.    Plummer    607 

—  V.  Richardson 347 

Welch  V.  Stipe  n.  404 

Wells  V.   Ins.  Co n.   272 

West  V.  State   ...    446 

Western  Assurance  Co.  v. 

Mohlman  Co n.   324 

Wheeler  v.  U.  S n.  77 

Whitaker    v.    Salisbury    114 

Whitebread's    Trial    129 

Whitelock  v.  Baker   n.  279 

—  V.  Musgrove      n.   250 

Willard  v.  Darrah   678 


LIST  OF  CASES  QUOTED. 


811 


PAGE 

William  &  Mary  College  v. 

Powell -. H.  91 

Williams  v.  R.  Co n.  330 

Willson  V.  Betts   n.  203 

Wilson  V.  Boerem   275 

Wilson's    Trial    n.    108 

Wilt  V.  Cutler  n.  322 

Winkley  v.   Kaime    ,....680 

Winn  V.  Patterson 244 

Wiseman  v.   Green    679 

Wolverton  v.  Commonwealth   ...  17 

Womack  v.  Hughes n.  309 

Woodward  v.  Goulstone  n.  335 


PAGE 

Worthington  v.  Menser   n.  76 

—  V.  Scribner    ;i.  539 

Wright  v.   Beckett    115 

—  V.  Sharp   ' 18 

—  V.  Tatham     268,  n.  349 

—  V.  Telegraph    Co .635 

Xenos  V.  Wickham 556 

Year  Book,  7  H.  IV.  41,  5 75i 

Yost  V.   Conroy    409 

Young  r.  Holmes »«.  i47 


LIST  OF  STATUTES  QUOTED. 


ENGLAND. 

Statutes  at  Large.  page 

27  H.  VIII,  c.  16 648 

32  H.  VIII,  c.  I,  §1 649 

5  &  6  Edw.  VI,  c.  II,  §  12 173 

5  Eliz.  c.  9,  §  12 441 

7  James   I,  c.    12 282 

29  Car.  II,  c.  3  §§  I,  3,  4.  7.  9   •  -M 

— §5    175.  649 

— §§17,   20    650 

— §  19    n.    175,   650 

7  Wm.   Ill,  c.  3,   §2 173 

— c.   7   173 

7  &  8  Wm.  Ill,  c.  3.  §7 442 

4  &  5  Anne,  c.   16,   §8 163 

46  Geo.  Ill,  c.  37 n.  460 

54  Geo.   Ill,  c.   170 775 

3  &  4  Wm.  IV,  c.  42 775 

Rules  and  Practice,  Hilary  Term, 

4  Wm.     IV,    No.    20 768 

3  &  4  Vict,  c.  26 775 

6  &  7  Vict,  c.  85 775 

8  &  9  Vict,  c.  113,  §  I n.  220 

9  &  ID  Vict,  c.  95 775 

14  &  15  Vict,  c.  99 316 

— §§i,    3,    4 775 

— §6    375 

16  &  17  Vict,  c.  83,  §§  I,  2,  3 776 

17  &   18  Vict.,  c.    125,   §22 120 

> — §  24    240 

—§25    243 

—§26 247 

— §27    428 

—§50    375 

22  &  23  Vict.,  c.  61,  §6 776 

32  &  33  Vict,  c.  68,  §§2,  3 776 

40  &  41   Vict.,  c.   14 776 

48  &  49  Vict.,  c.  69,  §  4. . .    .  .360,  776 

52  &  53  Vict.,  c.  44,  §8 776 

6i  &  62  Vict,  c.  36,  §1 776 

CALIFORNIA. 

Constitution   1879. 

Art    I.    §4 ■ 360 

Penal  Code  1872. 

§675    779 

§§867,    868     3(>3 

§926    535 

§§1099,    HOC,    II02 779 

§  1106    189 

§  1 120    n.  352 


PAGE 

§§1322,    1323     779 

§  1330    451 

Code  of  Civil  Procedure  1872. 
§§447,    448,   449 769 

§595    763 

§§  1308,   1315    252 

§§  1879,   1880   778 

§1881    508,  779 

—par.    4    547 

§  1882    509 

§  1893    316 

§  1900    322 

§  1901    316 

§§  1905,  1906 321 

§  1918    316 

§  1919    310 

§  1944    428 

§1948    315 

§  1951    231 

§  1963    322 

§2043    363 

§  2049    120 

§  2051    243 


COLORADO. 

Annotated  Statutes  1891. 

§§  185,     1168,     1170,     1171,    1172, 
I 173,  2780,  3382,  4785,  4816.. 780 

§§  4818,  4819,  4820,  4822 781 

§§  4823,  4824,  4825 782 

Session  Laws. 
1893,  p.   127,   §3 782 

CONNECTICUT. 
General  Statutes  i88y. 

§§1094,   1097    782 

§§1098,    1099,    1623 783 

GEORGIA. 

Code  1895. 

§3628    310 

§  5182    289 

§§  5198,   5268,  5269 783 

§§  5270,  5272,  5273,  5274,  5275, 

5276 784 

Criminal   Code   1895. 
§§104,  910,   loio,   ion 785 

Session   Laws. 
1897,    p.    53    784- 


812 


LIST  OF  STATUTES  QUOTED. 


813 


ILLINOIS. 

Constitution  1870.          page 
Art.    II,    §3 360 

Revised  Statutes  1874. 

C.    17,   §6 785 

C.  30,   §20 310 

—§35  231,  315 

—§36     231 

C  38,    §29 189 

—§§35,    426,    491 785 

C.  51,  §§i.  2 786 

— §3    289 

—§§4,    5     787 

-§6    368,  788 

—§§7,  8   788 

~§9     ••••, 375 

— §  13     ./.■":..... 321 

—§51      247 

C.    loi,   §§3,   4 360 

C.   no,   §20   376 

—§34     769 

—§§43,  44    764 

Session  Laws. 


1893,  June   17   .... 
1901,   May   II,   §3. 


.785 
.786 


IOWA. 
Constitution  1857. 

Art.   I,  §4   

Code  1897. 
§§  4601,  4602,  4603,  4604. 


.788 


4606,  4607  789 

§  4608  n.   509 

§4621  315 

§§  4622,  4623  289 

§4635    317 

§§  5267,  5268,  5269  537 

§§5484,   5485    789 

KANSAS. 
General  Statutes  1897. 

C.  95,  §§380.  381 376 

MAINE. 
Public  Statutes  188 S- 

C.  134,  §  19  503 

MASSACHUSETTS. 
Plymouth    Colony   Laws   196 284 

Public  Statutes  1882. 
C.    145,   §31    189 

Revised    Lazus    1902. 

C.    151,    §39 189 

C.    173,   §6    376 


C.  173.  §  35  368,  376 

—§§57-63   368,  nd 

C.    17s,   §§  18,    19    361 

— §  20    789 

— §21    790 

—§66    296 

—§70   247 

MICHIGAN. 
Compiled  Laws  1897. 

C.  282   (original  numbering) 

— §§99,  100,  loi    790 

— §  102    791 

§  8652    (editor's    numbering) 792 

§§11883,  11893,  11934   365 

Session  Laws. 

1887,  No.  82 792 

1897,   No.   212   792 

MINNESOTA. 

General  Statittes  1894. 

§§642,    1191,   2007    792 

§§  2216     794 

§§  2561,  5658,  5659 792 

§§5660,  5661,  5662,  6841    793 

§§7324,   7325    794 

MISSOURI. 

Revised  Statutes  1899. 

§§2635,    2636,    262,7,   2638 794 

§§4652,   4654,    4655,   4656 795 

§  §  4659,  4680  796 

NEBRASKA. 

Compiled  Statutes  1899. 

§5970    322 

NEW   YORK. 

Constitution   1S95. 

Art.  XIII,   §4 796 

Code  of  Civil  Procedure  1877. 

§735    769 

§§803,   804-809    2)77 

§§828,  829    796 

§§831,   832 797 

§  833 550 

§§834,  836 547 

§850    797 

§870    368 

§935 22,2,   310 

§  947    222 

§  1914 277 

Code    of   Criminal   Procedure    1S81. 
§§  10,  392.  393   797 


814 


LIST  OF  STATUTES  QUOTED. 


Penal  Code  1881.  p^^g 

§§714,  715 797 

Rules   of   the   Supreme   Court. 

1895,  Nos.  14-17 377 

Session  Laws. 

1876,  c.  182,   §  1 798 

1880,  c.  36,   §  1 428 

1883,  c.  195,   §1 247 

1888,  c.  555 428 

1892,  c.  689,   §  115 798 

OHIO. 

Annotated  Revised  Statutes  1898. 

§§  5240,  5241,  5242  798 

§§  5697,  7284,  7285  799 

OREGON. 

Codes  and  General  Laws  1892. 

§§712,    par.   4,   713 547 

PENNSYLVANIA. 
Digest  of  Laws  1896. 

Desertion   3 803 

Witnesses  i,  2,  3,  4,  8,  9,  10 800 

'—II,  12,  14,  15,  16 801 

— 18,  21,  22 802 


1899,   Pub.  L.  41, 
1903,  No.  32 


Session  Laws. 
I,  2. 


.803 
.803 


UNITED  STATES. 
Constitution  1787.         page 

Art.  Ill,  §3  173 

Art.  IV,  §  I 321 

Amend.    V 474 

Amend.  VI 269,  442 

Revised  Statutes  1878. 

§721 5 

§724    377 

§  824    5 

§858    776 

§§861,  863,  865,  866     271 

§  870 «.  446,  451 

§876    451 

§905    317,   321 

§906   317 

§  1033 365 

§§1078,  1079,  1977,  2140,  5392  ...777 

Session  Laws. 

7189,  c.  20,   §   15 377 

1874,  June   22,  c.  391,    §8 777 

1878       March   16,  c.  37 777 

1883,  March  3,  c.  116,  §6 778 

1887,  March  3,  c.  359,  §  8 778 

c.    397,    §  1 778 

1903,  Feb.  5,  c.  487,  §7 777 

Equity  Rules. 
No.  91    361 

WISCONSIN. 

Statutes  1898. 

§§4068,  4069 803 

§§4070,  4071,  4072,  4073,  4085... 804 


TOPICAL  INDEX. 


CASE  NO. 

Account-books — as  memoranda  to 

refresh  recollection.  .88,  go,  95 

— as   admissions    143 

— as     requiring     or     allowing 
proof      of      all      connected 

entries    213 

— as  exceptions  to  the  Hearsay 
rule : 
— statements  of  facts  against 

interest     293 

— regular    entries    301-31 1 

— official    records    325 

Admissions — of     parties     in    civil 

cases    134-148 

— of  accused  persons    (confes- 
sions)  ....146,  149-155,  185-190 
— of   agents   or   privies.  ..  .138-140 
— of    counsel    (judicial    admis- 
sions)     642-647 

Adverse  Possession — as  evidenced 

by   verbal    acts    363 

Affidavit — not     admissible     under 

Hearsay  rule    281 

Affirmative — burden     of     proving 

the     604 

Age — hearsay    evidence    of 298 

— inspection,   as    evidence   of..  159 

— of   ancient   document    220 

Agent — admissions    of    138 

— of    undisclosed    principal. ..  .561 
— verbal  acts  of,  as  res  gestae. 360 
Alteration — of    a    will,    testator's 

statement   as   evidence  of.  .352 

— parol  evidence  of 547,  594 

Ambiguity — latent   and  patent. ..  .594 
— interpretation     of,     in     gen- 
eral   585,  596 

Ancient    Document — as    evidenced 

by    age    and   custody.  ..  .220,   221 
Attesting       Witnesses — must      be 

called  or  accounted  for. 260-268 
— proof    of    attestation    essen- 
tial   179,  579 

Attorney — testimony  of,  as  objec- 
tionable  370,  371,  409 

— as     agent    to    make    admis- 
sions   144,  643 

— privileged  communications 

to   496-507 

Authentication   of   Documents — in 

general    215-219 

— by  age   220-22 1 

— by  contents    222-224 

— by  official  custody 225 

— by   seal    226-233 

— by  certificate  or  register.... 
326-329,  333-34^ 


CASE  NO. 

Bacon's  Maxim  594 

Bastardizing  Issue   184 

Best  Evidence  Rule — in  general..  162 
— see  also  Documents;  Attest- 
ing Witness. 
Bias — of    a    witness,    evidence 

of     11S-119 

Bigamy — in  proof  of  marriage  by 

eye-witness    194-197 

— by  confession   187 

Bill  of  Exchange — collateral  agree- 
ment, shown  by  parol.  .562,  563 

— delivery  in  escrow 532 

— protest  of  notary 333 

Birth — register  of,  as  evidence.  ..  . 

: 310,  325 

Blank — delivery  or  signature  of  a 

document  in 530,  531,  539 

Bodily  Condition — declarations  of 

injured  person  as  to. ..  .348-350 
— privilege   of  party   as  to   in- 
spection of 462,  463,  479 

Bookkeeper — entries  of,  as  admis- 
sible    307-311 

— as      refreshing      recollec- 
tion  88-95 

Books   of  Account — see  Account- 
Books. 
Boundaries  —  deceased      person's 

declarations  of 315,  316 

— official  survey  of 330 

— judicial   notice  of 640 

Burden  of  Proof — general  theory 

of   (x)4.  605 

— rules  for  determining.  ..  .606-614 
— proof       beyond       reasonable 

doubt  617.  618 

— by  preponderance   619 

— in  will  cases  620 

— in  criminal  cases... 611,  321,  625 
— in  negligence  issues 623 


'Capacit\ — testamentary;   see   San- 
ity. 
Carefulness — see  Negligence. 
Certificate — by    officer,    when    ad- 
missible as  hearsay 33^-334 

— authenticated  by  official   seal 

228-231 

— of  marriage,  when  admissible 

ns  hearsay .310.  3^5 

Certified  Copy — of  a  public  docu- 
ment,   when    admissible    as 

hearsay 336-341 

— not  admi'^sible  unless  originnl 
is  accounted  for 241-244 


815 


816 


TOPICAL  INDEX, 


CASE  NO. 

Certified  copy — authenticated  by 

oilicial  seal    228-231 

— whether  preferred   to   sworn 

copy     256 

Chancery     rules  of  evidence  in...     4 
— discovery    from    opponent 

in   386,  392,  460,  461 

Character — of  an  accused,  as  evi- 
dence    21-24 

— as  evidenced  by  conduct.  33-38 
— by  reputation    . . .  .319-322 

— by  opinion   424,  425 

— of  a  civil  party,  as  evidence 

••••; 25-29 

— evidenced  by  conduct.  . . . 

; Zl,  39.  40 

— by  reputation    ....319-322 

— of  a  witness,  as  evidence.  115-1 17 

— evidenced  by  conduct.  120-126 

— by    reputation 319-322 

— by  opinion 1 16,  426 

— impeaching  one's  own  wit- 
ness     108-111 

— restoration  of  credit 156 

Chattel — possession  of  stolen.  .32,  625 
— failure  to  produce,  as  an  ad- 
mission     147,   148 

— whether  production  is  neces- 
sary or  allowable 160,  236 

— inspection  of,  before  trial.  . .  .397 
— obtained  by  illegal  search... 440 
— party's  privilege  not  to  pro- 
duce   461 

Child — as  witness  61 

— capacity  to  take  the  oath. 376,  377 
Circumstantial   Evidence — defined.    16 

— relative  value  of 17 

— rules  for  different  kinds  of.  1-57 
— whether  sufficient  for  corpus 

delicti    188-190 

Clergyman — privileged     communi- 
cations to  524,  525 

Client — see  Attorney. 

Co-indictee — as  witness 73 

Cohabitation — as  evidence  of  mar- 
riage   192-197,  318 

Collateral  Fact — as  too  remote  in 

relevancy   19 

— as  complicating  the  issues...  20 
— in  contradiction  of  a  witness 

• 127-131 

— producing  a  document  form- 
ing a   250,  251 

Commercial     Reports — under     the 

Hearsay  rule    347 

Compromise — offer   to,   as   an   ad- 
mission    144 

Compulsory    Process  —  to    obtain 

witnesses    442-444 

— to  compel  bodily  exposure.  . . 

462.  463.  479 

— to  obtain  absent  witness'  tes- 
timony pending  continu- 
ance    645 


CASE  NO. 

Conclusiveness — of  a  magistrate's 

report  of  testimony   270 

— of  a  judicial  admission 642 

— of  an  ordinary  admission   ..135 
Confession — of  an  accused  person, 

as  admissible   

— as  insufficient  to  convict. . 
— whether  the   whole  must  be 

proved    

Confidential     Communication  —  in 

general 494,495 

— see  also  Privilege. 
Consciousness    of    Guilt — as    evi- 
dence    145,  146 

Consideration — recital    of,    varied 

by  parol 559 

Constitutional  Rules — for  the  right 

of  confrontation    285 

— for  compulsory  process.  .446,  645 

— for  treason   171 

Consul — certificate  of   337 

Contents — of     a     document;     see 

Document. 
Contradiction — of  one's  own  wit- 
ness     109-114 

— of  "other  witnesses 127-133 

Conversation — to    vary    a    written 
instrument;   see  Parol  Evi- 
dence. 
— meaning  of,  proved  by  opin- 
ion evidence 442,  443 

— whole  must  be  proved  .  .202-205 

— may  be  proved  210-214 

Conviction  of  Crime — as  a  dis- 
qualification    63,  64 

— in   impeachment    123 

— mode  of  proving  257 

Copy  of  a  Document — not  to  be 
used  till  original  is  account- 
ed for  235-255 

— preference  betvv^een  kinds  of 

copies    256-258 

— copy  of  a  copy 259 

— admissibility    of    a    certified 

copy   336-341 

— of  a  printed  copy 342-343 

Corporal     Injury — expressions     of 

pain  caused  by 348-350 

— inspection  of,  before  trial.  . .  .397 
— privilege  against  disclosure. . 

•  ••. 462,   463 

Corporation — seal  of,  whether  pre- 
sumed genuine 232 

— records   of,    whether   contra- 

dictable  by  parol  576 

Corpus  Delicti — mode  of  required 

proof   187-190 

Corroboration     of     Witness  —  by 

good  character 156 

— by  consistent  statements.  157,  158 
— required  for  treason,  perjury, 

etc .180-183 

— for  accused's  confession.  . 
187,    188 


TOPICAL  INDEX. 


817 


CASE   NO. 

Counsel — see  Attorney. 

Court — seal  of,  presumed  genuine 

22S,    229 

Crime — other,    as    evidencing    intent, 

knowledge,  etc 41-50 

— privilege  not  to  disclose. 471-493 
Criminal    Conversation — proof    of 

marriage  in  action  for.  .194-196 
Criminal   Trial — right  of  confron- 
tation in 285 

— proof  of  corpus  delicti  in.  187-189 

— calling  eye-witnesses   in 191 

— tender    of   witness'    expenses 

in    446 

— ^proof       beyond       reasonable 

doubt  in  618 

— burden  of  proof  of  insanity 

in    621 

Cross-Examination — right     to,     in 

general  271,  281-285 

— theory  and  art  of 277-280 

— mode  of  interrogation  on. . .  .  99 
— putting    in    one's    own    case 

on  . .. 403-405 

— impeaching  character  on-.  120-122 
— waiver    of    privilege    by    an- 
swering   on 485-490 

— showing  a  document  on.  .253-255 
Custom — to  vary  the   terms   of   a 

document     555 

— to  interpret  a  document .  586,  588 

Damages — party's      character      in 

mitigation  of 29 

— opinion  testimony  to 419 

Death — of  deponent   287-289 

— of  hearsay  declarant. 291,  295,  312 

— of  attesting  witness  268 

— provable  by  reputation. 298,  318)1 
— as  affecting  marital  privilege 

or  disqualification   76,  510 

Deceased — in  homicide,  threats  by 

.•  30 

Deed— execution  of;  see  Authenti- 
cation. 
— original  of;  see  Document. 
— record  of,  as  evidence. . .327-329 
— certified  copy  of,  as  evidence 

336-338 

— whether  the   whole  must  be 

proved 206-209 

— privilege  for  title-deeds 452 

— recital     in,     contradicted     by 

parol 559 

— intent  or  mistake   in   execu- 
tion     535-547 

—delivery     .528-533 

Defamation — character  of  plaintiff 

in    29 

Defendant  —  character     of;     see 
Character. 
— privilege  of ;  see  Privilege. 


CASE   NO. 

Defendant — admissions  of;    see 

Aduiissions. 
Demand— fpr     a     document;     see 
Notice  to  Produce. 

Demurrer — to  evidence 615,  616 

Deposition — right    of    cross-exam- 
ination on  a 281-2S3 

— issues   and   parties   the   same 

on  a 284 

— death,   illness,   etc.,   of   depo- 
nent    288 

Destruction — of  original  document, 

as  excusing  production 238 

— of  evidence,  as  an  admission 

^.     .    •••; 147,    148 

Dictionaries — as  evidence 

•••••••. ^^7,  345,  636 

Direct  Examination — order  of  evi- 
dence on 399-402 

Discovery — in  chancery 

^.        .• 385-397,    459-463 

Disgrace — privilege     against     an- 
swers involving  

125,  126,  456,  457 

Divorce — as  affecting  marital  priv- 
ilege    469,  509,  510 

— confession     of     respondent 

in , 18s,    186 

— presumption  of   622 

Docket — as     constituting    judicial 

record    567,  568 

Document — possession  of,  as  evi- 
dence  of   knowledge.  .142,    143 
— failure    to    produce,    as    evi- 
dence of  contents   ....147,   148 
— proof  of  handwriting  of,  by 

qualified   witness    83-85 

— by  comparison  of  hands. . 

•••; ;•. 427-435 

— production  of  original,  when 

required    235-249 

— exceptions  to  the  rule... 

250-255 

— kinds  of  copy  preferred.  .256-259 
— certified  copy  admissible. 336-341 
— proof    of    genuineness ;     see 

Authentication. 
— showing  to  witness  on  cross- 

cxaminntion     253-255 

— putting  in  the  whole.  ..  .206-214 
— discovery    of.    from    the    op- 
ponent before  trial 391-397 

— opponent's   privilege    in   civil 

cases 459-460 

— in  criminal  matters  .  .477,  478 
— interpretation  of,    by    expert 

testimony   423 

— for  Court,  not  jury 632 

— contradicted     by    parol ;     see 

Parol  f.'iidence  Rule. 
— public    document,    as    an    ex- 
ception to  the  Hearsay  rule; 
see  Official  Statements. 


818 


TOPICAL  INDEX. 


CASE   NO. 

Dying    Declaration — as    exception 

to  the  Hearsay  rule... 291,  292 

£m/'/o3'^^^character  of,  for  negli- 
gence    27,  28 

— negligent   acts   of 40 

Entry — in  a  book,  as  aid  to  recol- 
lection    87-96 

— as    exception   to    Hearsay 

rule    301-311 

Error — to  impeach  a  witness.  .127-129 
Evidence — direct   and   circumstan- 
tial, defined   16,  17 

— offer  of,  mode  of  making.  .10-12 

— prima  facie    61 1-616 

— order  of  producing 399-405 

— judge's  decision  upon  admis- 
sibility    627,  628 

Examination  —  before     a     magis- 
trate     270 

— order  of,  on  a  trial 399-405 

— mode  of  interrogation  on. 97-106 
— see  also  Cross-examination. 
Exception — mode  of  taking  ....12-15 
Execution — of    a    document ;    see 
Authentication;     Ilandivrit- 
ing. 

Executive — privilege  of 517,  518 

Executor — waiver  of  privilege  by. 507 

Expenses — of  a  witness 446,  447 

Expert  Witness — qualifications  of, 

in  general    65-67 

— as  to  sanity  82 

— as  to  handwriting. 83 -85,  435 
— hypothetical  questions  to. 436-438 
— opinion  rule  applied  to.  .410-416 
— use  of  scientific  books  by. 344-346 
Extrinsic  Testimony — in  aid  of  in- 
terpretation     580-602 

Eye-witness — of  a  crime 191 

— of  a  marriage   194-197 

Fact — judge  or  jury  to  determine 

627-633 

Failure — to  make  objection 12 

— to  produce  evidence  ....  147,  148 
Family  History — statements  of,  as 
exception    to    the    Hearsay 

rule    295-299 

Federal  Law — of  evidence  in  gen- 
eral      5 

— of  certified  copies 338,  341 

Felony — conviction  of,  as  disquali- 
fying     62-64 

— as  impeaching   122,  123 

Foreign  Law — judicially  noticed.  .639 

— mode  of  proof  66 

Former  Testimony — when    admis- 
sible    281-289 

— proved    by    magistrate's    re- 
port    270 

— whole  must  be  proved 203 


CASE   NO. 

Fraud — former,  as  evidence  of  in- 
tent   45,  46 

— shown  by  parol   558 

Frauds,  Statute  of — as  requiring  a 

writing 577,  578 

Fright — of  other  animals,  as  evi- 
dence    53,  55 

Grand     Jury — indorsement     of 

names   of  witnesses... 384 

— privilege    for    testimony    be- 

.fore    512-514 

— impeachment    of    indictment 

by  parol   575 

Grantee  —  grantor's      admissions, 

used  against 139,  140 

— producing  original  deed  of.. 243 
— deed    delivered    in    escrow 
to     528-533 

Handwriting  —  qualifications     of 

witnesses  to 83-85 

— comparison     of     specimens 

of    427-435 

Hearsay     Rule — general     theory 

of 271-280 

— exceptions  to 290-359 

— rule  not  applicable 360-367 

— rule  applied  to  court  officers 

•. 368-371 

— witness'  knowledge  based  on 

hearsay   79-8i 

History — books  of,  as  evidence... 

.•••.-. : 317,    345 

— ^judicial  notice  of  facts  of... 636 
Homicide — deceased's     threats    as 

evidence   30 

— proof  of  corpus  delicti.  ..187-190 
— burden  of  proof  of  sanity  in. 621 
Husband — testimony  of ;  se6  Mari- 
tal Relationship. 
Hypothetical     Question  —  as     re- 
quired or  allowable  .  . .  .436-438 

Illegitimacy — parents'  proof  of. . .  .184 
Illness — declarations  asserting  348-350 
— as    excusing    deponent's    at- 
tendance      288 

Impeachment — of    a    witness,    by 

moral  character 115-117 

— by  conduct 120-126 

— by  bias  or  interest.  ..  118,  119 

— by    contradiction 127-129 

— by    self-contradiction.  130-133 
— who  may  be  impeached.. 

108-114 

— expert  to  handwriting. . .  .435 
Indictment— list    of    witnesses    in- 
dorsed  on    384 

— contradicted  by  parol    57S 

— used  to  impeach  a  witness.  ..123 


TOPICAL  INDEX. 


819 


CASE   NO. 

Infamy — as    disqualifying    a    wit- 
ness  63,  54 

— as  impeaching  a  witness  122,  123 
— as  privileged  from  answer. . 

456,    457 

Informer — communication    by,    as 

privileged 515 

Inspection— of  premises    ....397,   461 
— of  corporal  injury.  .397,  462,  463 
— of  document. .  .391-396,  459,  460 
Insurance — opinion   as   to   materi- 

ability  in    420 

Intent — as     evidenced     by     other 

crimes   43-50 

— as  evidenced  by  opinion.  ..  .422 
— determined  by  judge  or  jury 

631,    633 

— proof  of,  by  parol ;  see  Parol 
Evidence. 
Interest — of  a  witness,  as  disqual- 
ifying  68-73 

— as  impeaching   119 

Interpretation  —  of         documents, 

rules  for  _ 580-602 

— judge  or  jury  to  determine. 632 

— by  opinion  evidence 423 

Interrogatory — to  opponent  in  dis- 
covery   385-340 

Judge — function     of     judge     and 

jury    627-633 

— as  witness 369,  408,  634,  635 

— judicial  notice  by  634,  641 

— determination  of  privilege  Ijy 

484-487 

Judgment — of  conviction  of  crime, 

mode  of  proving 257 

— certified   copy    of,    when    ad- 
missible      336-338 

— proving  the  whole  of... 206-209 
— contradicting      the      record 

of   567,   568 

Judicial  Admission — rules  for  642-647 
Judicial  Notice — rules  for. ..  .634-641 
Judicial    Record — contradicted    by 

parol    567,   568 

— see  also  Judgment. 
Juror — function     of     judge     and 

jurors    627-633 

— as  witness   368,  407 

— judicial  notice  by   637 

— privilege  for  communications 

by 511-514 

— affidavit  to  impeach  verdict. 
569-575 

Knowledge — mode    of    evidencing 

a  party's   41.  4^ 

— witness'  qualifications  as  to. 
77-86 

Land — boundaries     of,     evidenced 

by  hearsay  315.  3^6 


CASE   NO. 

Larceny  —  possession     of    stolen 

goods  in  evidence  of. . .  .32,  625 

Latent  Ambiguity — parol  evidence 

of  594 

Law-;-proof  of,  by  expert  66 

— judicial  notice  of   639 

—judge  or  jury  to  determine.  .631 

Leading    Questions — when    allow- 
able   98,  99 

Ledger—as   book   of   original   en- 
tries      303 

Liability — privilege  as  to  civil.,. .  .458 

Malicious  Prosecution — burden  of 

proof  in   608 

Marital   Relationship — disqualifica- 
tion of  husband  or  wife.  .74-76 
— privilege  of  husband  or  wife 

.•••: 464-470 

communications    between    hus- 
band and  wife 509,  510 

Marriage — habit    and     repute,    as 

evidence  of  192,  193,  318 

— eye-witness  required  to  prove 

•. 194-197 

— presumption  of    622 

Memory — modes  of  refreshing.  .87-96 
Mental     Condition — evidenced    by 

acts    38 

— by  hearsay  statements.  .  .348-357 
— opinion  evidence  of.... 417,  418 
Mistake — in  a  document,  evidenced 

by  parol  535-547 

Negligence — character  of  a  party 

for 27 

— conduct  as  evidence  of 40 

— opinion  testimony  to   413 

— judge  or  jury  to  determine.  .629 
— burden  of  proof  as  to. . .612,  623 
Notary — certificate  of  protest  of.. 333 
— seal  of,  presumed  genuine.. 

230,    231 

Note,  Promissory — mistake  shown 

by  parol   539-545 

— delivery  in  escrow 530-53^ 

— collateral  agreement  by  parol 

.562,    563 

Notice — to     produce     an     original 

document    238-240 

— of  opponent's  evidence  before 

trial 383-397 

— to  take  a  deposition 282,  283 

Novation — shown  by  parol 564 

Number    of    Witnesses — rules    re- 
quiring a  minimum  .  . .  .163-179 
— rules  fixing  a  maximum. ..  .406 
Nuncupative    Will — under    statute 

of  Frauds   577 

Oath — rules    for    administration 

of    ?>7y2,77 


820 


TOPICAL    INDEX, 


CASE   NO. 

Oath — accused's   confession    un- 

.der :•  153-155 

— impeaching  witness'  belief  on 

1 16,    424-426 

— affidavit    under,    not    admis- 
sible   281 

Objection — to    evidence,    mode   of 

making   11-15 

— to  witness,  time  of  making.  .  69 
Offer — of  evidence,  mode  of  mak- 
ing     10 

— conditional 400,  401 

Office  Copy — see  Certified  Copy. 
Officer — public,    register   or   certi- 
ficate of   323-343 

secrets  of,  privilege  for. .  .515-519 
Opinion  —  rules      for     testimony 

of   410-438 

Opponent — privilege    of,    in    civil 

cases 459-463 

— discovery   from,    before   trial 

385-397 

Original  document — 
— see  Document. 
Oyer    and    Profert — when    requir- 
ed     394 

Parol  Evidence — of    a    document 
not  produced ;  see 
Document. 
Parol     Evidence     Rule  —  general 

theory  of 526 

— proof   of   delivery   not   com- 
pleted   527-533 

— of  mistake  in  execution. 535-547 

— of       collateral       agreements         j 
varying  the  terms.  ....  .553-565   j 

^-of    facts    or    declarations    to 
interpret  the  terms    ...581-602 

— applied   to   records   and   ver- 
dicts   567-575 

— applied  to  corporate  acts. . .  .576 
Parties — privilege      of,      in      civil 

cases    ... .459-463 

— disqualification   of,   by    inter- 
est  68-73 

— character  of,  as  evidence. .21-29 

— conduct  of,  as  evidence.  .  .33-40 

— admissions    of,    as    evidence 
•. 134-148 

— parol   understanding  of;    see 
Parole  Evidence  Rule. 

— discovery  by,  before  trial. 385-390 
Patent    Ambiguity — proof    of,    by 

parol 594 

Patient — declarations   of   suffering 

by .....348-350 

— privileged     communications 

by    ...520-523 

Pedigree — hearsay  declarations  to 

prove 295-299 

Penitent  —  privileged    communica- 
tions by 524,  525 


CASE  NO. 

Perjury — penalty  for,  as  a  security 

for  truth   378 

— conviction     of,    in    impeach- 
ment    123 

— proof  of,  by  two  witnesses. .  172 

Photograph — as    evidence    105 

Physician — declarations     of     pain 

made  to   348-350 

—privileged       communications 
to 520-523 

Plaintiff — see  Parties. 

Possession — of    stolen    goods,    as 

evidence  32 

— as  a  presumption 625 

— of    land,    evidenced    by    de- 
clarations against  interest.  .293 
— by     declarations     as     res 

gestae 363 

— by  grantor's  admissions. .  139 
— by     sundry      declarations 
■ 312,  316 

Preponderance — of      evidence      in 

civil  cases   619 

Presumption — see  Burden  of  Proof. 

Price — evidenced   by  price-lists.  .  .347 

Priest — privileged  communications 

to 524,  525 

Printed   Copy — of   a  public   docu- 
ment as  evidence 342,  343 

Privilege — of  not   attending   from 

distance 448,  449 

— of  certain  topics  : 

— irrelevant  matters 451 

— title-deeds   452 

— trade   secrets    453 

— religious  belief 454 

— political   votes    455 

— disgracing  facts 456,  457 

— opponent    in    civil     cases 

.;••    •;••.-. 459-463 

— civil    liability    458 

— criminal   liability    .  . .  .471-493 
— husband    and    wife.  .  .464-470 
— of  certain  communications : 

— in  general   494 

— telegrams    495 

— attorney  and  client  ..496-507 
— husband  and  wife   ..509,  510 

—jurors    _ 511-514 

— government  and  informer 

515-519 

— official    secrets    516-519 

— physician  and  patient. 520-523 

— priest  and  penitent.  .524,  525 

— mode  of  making  claim.  .450,  483 

Production      of      Document  —  see 
Document;  Discovery. 

Profert — when  required    394 

Public   Document — when   admissi- 
ble in  evidence : 
— registers  and  records. 323-329 
— returns  and  reports.  .330,  331 
— certificates    33^-243 


TOPICAL    INDEX. 


821 


CASE  NO. 

Public  Document — when  original 

must  be  produced    235-255 

— when    provable    by    certified 

copy 336-343 

— when   certified   copy   is    pre- 
ferred    256-259 

— authenticated  by  seal  or  cus- 
tody   226-233 

— privileged  as  State  secret.516-519 

Question — in    leading    form... 98,    99 
— before     proving     self-contra- 
diction   132,  133 

Rape — evidence  of  intent  in 47 

Real  Evidence — rules  allowing.159-161 
Reasonable  Doubt — proof  beyond, 

in  criminal  cases 618 

Rebuttal — order  of  evidence  in... 399 
Receipt — contradicted  by  parol. . .  .558 
Recital — in  ancient  deed,  when  ad- 
missible     313 

— of   consideration,   contradict- 
ed by  parol  559 

Recollection — modes  of  aiding.  .87-96 
Record — by    public    officer,    when 

admissible    325-329 

— certified  copy  of 336-341 

— judicial,  not  contradicted  by 

parol 567,  568 

Refreshing  Memory — modes  of. 87-96 
Register — of    marriages,    etc.,    as 

regular  entry   310 

— by  public  officer 325-329 

Regular     Entries — admissible     by 
exception     to     the     hearsay 

rule 301-31 1 

Religious   Belief — as   required   for 

the  oath  373-377 

— as    privileged     from    disclo- 
sure  454 

Report — of    a    public    officer,    as 

admissible 330,  331 

— of   a   magistrate,    as   conclu- 
sive    270 

Reputation — to     prove     character 

319-322 

— marriage   192,  193,  318 

— general  history 317 

— boundaries   315,  316 

Res  Gestae — spontaneous  declara- 
tions after  injuries 358.  359 

— verbal  acts  as  part  of. .  .361-364 
— utterances  material  to  issues. 360 
Res    ipsa    loquitur — as    presuming 

negligence   624 

Return — of  a  surveyor 330 

Sanity — conduct  as  evidence  of...  38 
— qualifications  of  witness  to. .  82 

— opinion  evidence  of 417,  418 

— burden  of  proof  of. 606.  620,  621 

Scientific   Books — as  evidence.344-346 


CASE  NO. 

Seal — as     evidence     of    a     docu- 
ment's genuineness  . . .  .226-233 

Secret — of  State,  privileged.  ..515-519 

Self-Contradiction — of    a    witness, 

in  impeachment  130-133 

— showing    a    document    used 

^  ,,  Ji}    •••■;    253-255 

Self-Cnmmation — privilege 

against 471-493 

Separation     of     Witnesses — when 

allowable 381,  382 

Signature — see  Attesting  Witness; 
Handwriting. 

Silence — as  an  admission  ....141-143 

Similar    Instances — of    accidents, 

eflfects,  etc 51-57 

Spoliation — of  evidence,  as  an  ad- 
mission   147,  148 

State — seal  of,  presumed  genuine. 228 
— secrets  of,  privileged  . . .  .515-519 

Statute — proved    by    printed    copy 

.••: : 342,  343 

— judicial  notice  of 638,  639 

Stolen    Goods — possession    of,    as 

evidence  32 

— as  a  presumption   625 

Subpoena — rules  for 442-449 

Sufficiency — of  evidence  to  go  to 

the  jury   61 1-616 

Surveyor — return  of,  as  evidence. 330 
Survivor — disqualified  as  witness.  71 

Telegram — production  of  original. 246 
— answer  assumed  genuine.  ..  .223 
Telephone — answer  assumed  gen- 
uine   224 

Tenancy — production    of    lease    to 

prove 247 

Testator — declarations   of,    as   ex- 
ception to  the  hearsay  rule 

...; ; 352-357 

— opinion  testimony  to  capacity 

of 417.  418 

— intent  or  mistake  in  execut- 
ing  will .547. 

— burden    of    proof    of    sanity 

of  606,  620 

— declarations   to   interpret 

will .591-602 

Threats — of  deceased  in  homicide.  30 
Treason — proved     by     two      wit- 
nesses   171.  ^73 

Undisclosed   Principal — shown   by 

parol   561 

Usage — to    vary    the    terms    of    a 

document  555 

— to  interpret  a  document .  586,  588 

Value — opinion  testimony  to 419 

Verdict — impeached  by  juror's  af- 
fidavit    569-575 

View — by  jury,  when  allowable.  .161 


822 


TOPICAL    INDEX. 


CASE  NO. 

Voir  dire — proof  of  interest  upon.  69 
Vote — privilege  not  to  disclose 455 

Waiver — of  privilege  against  self- 
crimination   491-493 

— for     client's    .communica- 
tions   506,  507 

Whole — of  an  utterance,  vi^hen  it 

must  be  offered  206-209 

— when   it   may   be   offered 
212,  213 

Wife — see  Marital  Relationship. 

Will— proof  by  two  witnesses.  177-179 
— by  attesting  witness.  .260-268 

— substance  of  a  lost 208 

— burden    of    proof    of    execu- 
tion  606,  620 

— see  also  Testator. 

Witness — qualifications : 

— in  general   58 

— sanity 59.  60 

- — infancy   61 

— infamy    62-64 

— experience    66,  67 

— interest  68-73 

— marital  relationship  .  ..  .74-76 

— knowledge    77-86 

— recollection 87-96 

— narration 97-106 


CASE  NO. 

Witness — impeachment : 

— who    may    be    impeached 

108-114 

— moral  character 115-117 

— bias  and  interests 118,  119 

^conduct,  to  evidence  char- 
acter   120-126 

— contradiction  by  the  wit- 
nesses     127-129 

— self-contradiction     ...130-133 

— supporting   credit   of. ..  .156-158 

— requiring    a    minimum   num- 
ber of 163-179 

— fixing    a    maximum    number 
of    406 

— separation  of   381,  382 

— compulsory  process 

for    442-447,  645 

— expenses  of  445,  446 

— failure  to  produce,  as  an  ad- 
mission   147,  148 

— attesting 260-268 

— indorsement    of,    on    indict- 
ment   383,  384 

— testimony  of  absent,  admitted 
to  secure  continuance.  .644,  645 

— discovering  names  of,  before 

trial  390 

Writing — see  Document;   Handwrit- 
ing, 


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